C.1.a.

e) Estafa under the Hannah Serana case, 542 SCRA, 1/22/08

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 162059 January 22, 2008

HANNAH EUNICE D. SERANA, petitioner,

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholaran** accused, along with her brother, of swindling
government funds?

MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid,
na kapwa pinararatangan ng estafa ng pera ng bayan?

The jurisdictional question is posed in this petition for certiorari assailing the Resolutions1 of the
Sandiganbayan, Fifth Division, denying petitioner’s motion to quash the information and her motion
for reconsideration.

The Antecedents

Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu.
A student of a state university is known as a government scholar. She was appointed by then
President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year
term starting January 1, 2000 and ending on December 31, 2000.

In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall
Annex in UP Diliman.2 On September 4, 2000, petitioner, with her siblings and relatives, registered
with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc.
(OSRFI).3

One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.4 President Estrada
gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed
renovation. The source of the funds, according to the information, was the Office of the President.

The renovation of Vinzons Hall Annex failed to materialize.5 The succeeding student regent, Kristine
Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a
system-wide alliance of student councils within the state university, consequently filed a complaint
for Malversation of Public Funds and Property with the Office of the Ombudsman.6
On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner
and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the
Sandiganbayan.7 The Information reads:

The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby
accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa,
defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as
amended committed as follows:

That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the
Student Regent of the University of the Philippines, Diliman, Quezon City, while in the
performance of her official functions, committing the offense in relation to her office and
taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN
D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously
defraud the government by falsely and fraudulently representing to former President Joseph
Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines
will be renovated and renamed as "President Joseph Ejercito Estrada Student Hall," and for
which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN
MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President,
and the latter relying and believing on said false pretenses and misrepresentation gave and
delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the
amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently
encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their
personal use and benefit, and despite repeated demands made upon the accused for them
to return aforesaid amount, the said accused failed and refused to do so to the damage and
prejudice of the government in the aforesaid amount.

CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any
jurisdiction over the offense charged or over her person, in her capacity as UP student regent.

Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the
crimes or offenses over which the Sandiganbayan has jurisdiction.8 It has no jurisdiction over the
crime of estafa.9 It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2
(Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling
under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the
Sandiganbayan’s jurisdiction.

She also argued that it was President Estrada, not the government, that was duped. Even assuming
that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the
government.10

Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student
regent, she was not a public officer since she merely represented her peers, in contrast to the other
regents who held their positions in an ex officio capacity. She addsed that she was a simple student
and did not receive any salary as a student regent.

She further contended that she had no power or authority to receive monies or funds. Such power
was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in the information
that it was among her functions or duties to receive funds, or that the crime was committed in
connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing
the case of Soller v. Sandiganbayan.11

The Ombudsman opposed the motion.12 It disputed petitioner’s interpretation of the law. Section 4(b)
of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase "in relation to office,"
thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the
prosecution countered that the source of the money is a matter of defense. It should be threshed out
during a full-blown trial.13

According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As a
member of the BOR, she hads the general powers of administration and exerciseds the corporate
powers of UP. Based on Mechem’s definition of a public office, petitioner’s stance that she was not
compensated, hence, not a public officer, is erroneous. Compensation is not an essential part of
public office. Parenthetically, compensation has been interpreted to include allowances. By this
definition, petitioner was compensated.14

Sandiganbayan Disposition

In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioner’s motion for lack of
merit.15 It ratiocinated:

The focal point in controversy is the jurisdiction of the Sandiganbayan over this case.

It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As
correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the
Sandiganbayan also has jurisdiction over other offenses committed by public officials and
employees in relation to their office. From this provision, there is no single doubt that this
Court has jurisdiction over the offense of estafa committed by a public official in relation to
his office.

Accused-movant’s claim that being merely a member in representation of the student body,
she was never a public officer since she never received any compensation nor does she fall
under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of
Republic Act No. 8249 which provides:

Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:

(A) x x x

(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:

xxxx

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations. (Italics supplied)
 It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive
jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective
of their salary grades, because the primordial consideration in the inclusion of these officials
is the nature of their responsibilities and functions.

Is accused-movant included in the contemplated provision of law?

A meticulous review of the existing Charter of the University of the Philippines reveals that
the Board of Regents, to which accused-movant belongs, exclusively exercises the general
powers of administration and corporate powers in the university, such as: 1) To receive and
appropriate to the ends specified by law such sums as may be provided by law for the
support of the university; 2) To prescribe rules for its own government and to enact for the
government of the university such general ordinances and regulations, not contrary to law,
as are consistent with the purposes of the university; and 3) To appoint, on recommendation
of the President of the University, professors, instructors, lecturers and other employees of
the University; to fix their compensation, hours of service, and such other duties and
conditions as it may deem proper; to grant to them in its discretion leave of absence under
such regulations as it may promulgate, any other provisions of law to the contrary
notwithstanding, and to remove them for cause after an investigation and hearing shall have
been had.

It is well-established in corporation law that the corporation can act only through its board of
directors, or board of trustees in the case of non-stock corporations. The board of directors
or trustees, therefore, is the governing body of the corporation.

It is unmistakably evident that the Board of Regents of the University of the Philippines is
performing functions similar to those of the Board of Trustees of a non-stock corporation.
This draws to fore the conclusion that being a member of such board, accused-movant
undoubtedly falls within the category of public officials upon whom this Court is vested with
original exclusive jurisdiction, regardless of the fact that she does not occupy a position
classified as Salary Grade 27 or higher under the Compensation and Position Classification
Act of 1989.

Finally, this court finds that accused-movant’s contention that the same of P15 Million was
received from former President Estrada and not from the coffers of the government, is a
matter a defense that should be properly ventilated during the trial on the merits of this
case.16

On November 19, 2003, petitioner filed a motion for reconsideration.17 The motion was denied with
finality in a Resolution dated February 4, 2004.18

Issue

Petitioner is now before this Court, contending that "THE RESPONDENT COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION
IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING
THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION." 19

In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has
no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her
tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in
question personally came from President Estrada, not from the government.
 Our Ruling

The petition cannot be granted.

Preliminarily, the denial of a motion to

quash is not correctible by certiorari.

We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-
established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a
petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special
defenses invoked in their motion to quash.20 Remedial measures as regards interlocutory orders,
such as a motion to quash, are frowned upon and often dismissed.21 The evident reason for this rule
is to avoid multiplicity of appeals in a single action.22

In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and illustrated the
rule and the exceptions, thus:

As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be
subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary
procedure to be followed in such a case is to file an answer, go to trial and if the decision is
adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an
order denying a motion to quash, except that instead of filing an answer a plea is entered
and no appeal lies from a judgment of acquittal.

This general rule is subject to certain exceptions. If the court, in denying the motion to
dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require
the defendant or accused to undergo the ordeal and expense of a trial if the court has no
jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or
a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of
appeal cannot be plain and adequate. The following are a few examples of the exceptions to
the general rule.

In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack
of jurisdiction over the subject matter, this Court granted the petition for certiorari and
prohibition against the City Court of Manila and directed the respondent court to dismiss the
case.

In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack
of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the
respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on
improper venue, this Court granted the petition for prohibition and enjoined the respondent
judge from taking cognizance of the case except to dismiss the same.

In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by
prior judgment, this Court granted the petition for certiorari and directed the respondent judge
to dismiss the case.
 In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on
the Statute of Frauds, this Court granted the petition for certiorari and dismissed the
amended complaint.

In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the
motion to quash based on double jeopardy was denied by respondent judge and ordered him
to desist from further action in the criminal case except to dismiss the same.

In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on
prescription was set aside on certiorari and the criminal case was dismissed by this Court.24

We do not find the Sandiganbayan to have committed a grave abuse of discretion.

The jurisdiction of the Sandiganbayan is

set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.

We first address petitioner’s contention that the jurisdiction of the Sandiganbayan is determined by
Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that
petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in
her motion to quash before the Sandiganbayan.25She repeats the reference in the instant petition
for certiorari26 and in her memorandum of authorities.27

We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears
stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.28

Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as
amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the
statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486,
promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain
the highest norms of official conduct required of public officers and employees, based on the
concept that public officers and employees shall serve with the highest degree of responsibility,
integrity, loyalty and efficiency and shall remain at all times accountable to the people.29

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10,
1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.30

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the
Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding
amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249.
Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands,
the Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:

A. Violations of Republic Act No. 3019, as amended, other 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 989 (Republic Act No. 6758), specifically including:

" (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and other city department heads;

" (b) City mayor, 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 superintended 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 government-owned or controlled

corporations, state universities or educational institutions or foundations.

" (2) Members of Congress and 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) Chairmen and members of Constitutional Commission, without prejudice to the
provisions of the Constitution; and

" (5) All other national and local officials classified as Grade "27'" and higher under the
Compensation and Position Classification Act of 1989.

B. Other offenses of 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 No. 6758, or military and PNP
officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper
regional 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 judgments,
resolutions or order of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.
 " The Sandiganbayan shall have exclusive original jurisdiction over petitions for 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.

" The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules
that the Supreme Court has promulgated and may thereafter 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.

" 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.

" Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action
and the corresponding civil action for the recovery of civil liability shall, at all times, be
simultaneously instituted with, and jointly determined in, the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil
action separately from the criminal action shall be recognized: Provided, however, That
where the civil action had heretofore been filed separately but judgment therein has not yet
been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the
appropriate court, said civil action shall be transferred to the Sandiganbayan or the
appropriate court, as the case may be, for consolidation and joint determination with the
criminal action, otherwise the separate civil action shall be deemed abandoned."

Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law
represses certain acts of public officers and private persons alike which constitute graft or corrupt
practices or which may lead thereto.31 Pursuant to Section 10 of R.A. No. 3019, all prosecutions for
violation of the said law should be filed with the Sandiganbayan.32

R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has
jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the
jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote:

Section 4. Prohibition on private individuals. – (a) It shall be unlawful for any person having
family or close personal relation with any public official to capitalize or exploit or take
advantage of such family or close personal relation by directly or indirectly requesting or
receiving any present, gift or material or pecuniary advantage from any other person having
some business, transaction, application, request or contract with the government, in which
such public official has to intervene. Family relation shall include the spouse or relatives by
consanguinity or affinity in the third civil degree. The word "close personal relation" shall
include close personal friendship, social and fraternal connections, and professional
employment all giving rise to intimacy which assures free access to such public officer.
 (b) It shall be unlawful for any person knowingly to induce or cause any public official to
commit any of the offenses defined in Section 3 hereof.

In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the
Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides
for their penalties.

Sandiganbayan has jurisdiction over

the offense of estafa.

Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes
cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first
paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said
provision.

The rule is well-established in this jurisdiction that statutes should receive a sensible construction so
as to avoid an unjust or an absurd conclusion.33 Interpretatio talis in ambiguis semper fienda est, ut
evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang
pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa.

Every section, provision or clause of the statute must be expounded by reference to each other in
order to arrive at the effect contemplated by the legislature.34 The intention of the legislator must be
ascertained from the whole text of the law and every part of the act is to be taken into view.35 In other
words, petitioner’s interpretation lies in direct opposition to the rule that a statute must be interpreted
as a whole under the principle that the best interpreter of a statute is the statute itself.36 Optima
statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa
kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang
mismong batas.

Section 4(B) of P.D. No. 1606 reads:

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.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in
relation to their office. We see no plausible or sensible reason to exclude estafa as one of the
offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies.
The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public
officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the
offense is committed in relation to their office.

In Perlas, Jr. v. People,37 the Court had occasion to explain that the Sandiganbayan has jurisdiction
over an indictment for estafa versus a director of the National Parks Development Committee, a
government instrumentality. The Court held then:

The National Parks Development Committee was created originally as an Executive

Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and
other national parks (Executive Order No. 30). It was later designated as the National Parks
Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966,
Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-
 Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest
Development, Department of Natural Resources, on December 1, 1975 (Letter of
Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the
NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981).

Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government
agency under the Office of the President and allotments for its maintenance and operating
expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).

The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness in Bondoc v.
Sandiganbayan.38Pertinent parts of the Court’s ruling in Bondoc read:

Furthermore, it is not legally possible to transfer Bondoc’s cases to the Regional Trial Court,
for the simple reason that the latter would not have jurisdiction over the offenses. As already
above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondoc’s cases and
those of the government employees separately charged for the same crimes, has not altered
the nature of the offenses charged, as estafa thru falsification punishable by penalties higher
than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by
government employees in conspiracy with private persons, including Bondoc. These crimes
are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be
taken cognizance of by the regular courts, apart from the fact that even if the cases could be
so transferred, a joint trial would nonetheless not be possible.

Petitioner UP student regent

is a public officer.

Petitioner also contends that she is not a public officer. She does not receive any salary or
remuneration as a UP student regent. This is not the first or likely the last time that We will be called
upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to
pin down the definition of a public officer.39 The 1987 Constitution does not define who are public
officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence.

In Aparri v. Court of Appeals,40 the Court held that:

A public office is the right, authority, and duty created and conferred by law, by which for a
given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be
exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1).
The right to hold a public office under our political system is therefore not a natural right. It
exists, when it exists at all only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested
interest or an estate in an office, or even an absolute right to hold office. Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one
can be said to have any vested right in an office or its salary (42 Am. Jur. 881).

In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public office:

"A public office is the right, authority and duty, created and conferred by law, by which, for a
given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so invested is a public officer."42
Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition
fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the
jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers
enumerated in P.D. No. 1606. In Geduspan v. People,43 We held that while the first part of Section
4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other
executive officials whose positions may not be of Salary Grade 27 and higher but who are by
express provision of law placed under the jurisdiction of the said court. Petitioner falls under the
jurisdiction of the Sandiganbayan as she is placed there by express provision of law.44

Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over
Presidents, directors or trustees, or managers of government-owned or controlled corporations, state
universities or educational institutions or foundations. Petitioner falls under this category. As the
Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a
non-stock corporation.45 By express mandate of law, petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606.

Moreover, it is well established that compensation is not an essential element of public office.46 At
most, it is merely incidental to the public office.47

Delegation of sovereign functions is essential in the public office. An investment in an individual of

some portion of the sovereign functions of the government, to be exercised by him for the benefit of
the public makes one a public officer.48

The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP
performs a legitimate governmental function by providing advanced instruction in literature,
philosophy, the sciences, and arts, and giving professional and technical training.49 Moreover, UP is
maintained by the Government and it declares no dividends and is not a corporation created for
profit.50

The offense charged was committed

in relation to public office, according
to the Information.

Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would
still not have jurisdiction over the offense because it was not committed in relation to her office.

According to petitioner, she had no power or authority to act without the approval of the BOR. She
adds there was no Board Resolution issued by the BOR authorizing her to contract with then
President Estrada; and that her acts were not ratified by the governing body of the state university.
Resultantly, her act was done in a private capacity and not in relation to public office.

It is axiomatic that jurisdiction is determined by the averments in the information.51 More than that,
jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an
answer, a motion to dismiss, or a motion to quash.52 Otherwise, jurisdiction would become
dependent almost entirely upon the whims of defendant or respondent.53

In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a
student regent of U.P., "while in the performance of her official functions, committing the offense in
relation to her office and taking advantage of her position, with intent to gain, conspiring with her
brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and
feloniously defraud the government x x x." (Underscoring supplied)
Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not
quash the information based on this ground.

Source of funds is a defense that should

be raised during trial on the merits.

It is contended anew that the amount came from President Estrada’s private funds and not from the
government coffers. Petitioner insists the charge has no leg to stand on.

We cannot agree. The information alleges that the funds came from the Office of the President and
not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that
"petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine
Currency, from the Office of the President, and the latter relying and believing on said false
pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353
dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)."

Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a
matter of defense that should be ventilated during the trial on the merits of the instant case.54

A lawyer owes candor, fairness

and honesty to the Court.

As a parting note, petitioner’s counsel, Renato G. dela Cruz, misrepresented his reference to
Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to
quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge
petitioner’s counsel to observe Canon 10 of the Code of Professional Responsibility, specifically
Rule 10.02 of the Rules stating that "a lawyer shall not misquote or misrepresent."

The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty Dionisio D. Ramos
used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty.
Ramos resorted to deception by using a name different from that with which he was authorized. We
severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or
disbarment.56

We admonish petitioner’s counsel to be more careful and accurate in his citation. A lawyer’s conduct
before the court should be characterized by candor and fairness.57 The administration of justice
would gravely suffer if lawyers do not act with complete candor and honesty before the courts.58

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez, Corona*, Nachura, JJ., concur.

C.1.a.f) Falsification under the Garcia vs. Sandiganbayan case, 603 SCRA

EN BANC

MAJOR GENERAL G.R. No. 165835

CARLOS F. GARCIA,
Petitioner, Present:

DAVIDE, JR.,C.J.,
PUNO,
PANGANIBAN,
QUISUMBING,
- versus - YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES CALLEJO, SR.,
SANDIGANBAYAN and AZCUNA,
the OFFICE OF THE TINGA,
OMBUDSMAN, CHICO-NAZARIO, and
Respondents. GARCIA, JJ.

Promulgated:
June 22, 2005
x ------------------------------------------------------------------ x

DECISION
TINGA, J.:

Petitioner Major General Carlos F. Garcia was the Deputy Chief of

Staff for Comptrollership, J6, of the Armed Forces of the
Philippines. Petitioner filed this Petition for certiorari and
prohibition under Rule 65 to annul and set aside public respondent
Sandiganbayans Resolution[1] dated 29 October 2004 and Writ of
Preliminary Attachment[2] dated 2 November 2004, and to enjoin
public respondents Sandiganbayan and Office of the Ombudsman
from further proceeding with any action relating to the enforcement
of the assailed issuances.

On 27 September 2004, Atty. Maria Olivia Elena A. Roxas, Graft

Investigation and Prosecution Officer II of the Field Investigation
Office of the Office of the Ombudsman, after due investigation, filed
a complaint against petitioner with public respondent Office of the
Ombudsman, for violation of Sec. 8, in relation to Sec. 11 of
Republic Act (R.A.) No. 6713,[3] violation of Art. 183 of the Revised
Penal Code, and violation of Section 52 (A)(1), (3) and (20) of the
Civil Service Law. Based on this complaint, a case for Violations of
R.A. No. 1379,[4] Art. 183 of the Revised Penal Code, and Sec. 8 in
relation to Sec. 11 of R.A. No. 6713, docketed as Case

No. OMB-P-C-04-1132-I, was filed against petitioner.[5] Petitioners

wife Clarita Depakakibo Garcia, and their three sons, Ian Carl,
Juan Paolo and Timothy Mark, all surnamed Garcia, were
impleaded in the complaint for violation of R.A. No. 1379 insofar as
they acted as conspirators, conduits, dummies and fronts of
petitioner in receiving, accumulating, using and disposing of his ill-
gotten wealth.

On the same day, 27 October 2004, the Republic of the Philippines,

acting through public respondent Office of the Ombudsman, filed
before the Sandiganbayan, a Petition with Verified Urgent Ex Parte
Application for the Issuance of a Writ of Preliminary
Attachment[6] against petitioner, his wife, and three sons, seeking
the forfeiture of unlawfully acquired properties under Sec. 2 of R.A.
No. 1379, as amended. The petition was docketed as Civil Case No.
0193, entitled Republic of the Philippines vs. Maj. Gen. Carlos F.
Garcia, et al. It was alleged that the Office of the Ombudsman, after
conducting an inquiry similar to a preliminary investigation in
criminal cases, has determined that a prima facie case exists
against Maj. Gen. Garcia and the other respondents therein who
hold such properties for, with, or on behalf of, Maj. Gen. Garcia,
since during his incumbency as a soldier and public officer he
acquired huge amounts of money and properties manifestly out of
proportion to his salary as such public officer and his other lawful
income, if any.[7]

Acting on the Republics prayer for issuance of a writ of preliminary

attachment, the Sandiganbayan issued the
questioned Resolution granting the relief prayed for. The
corresponding writ of preliminary attachment was subsequently
issued on 2 November 2004 upon the filing of a bond by the
Republic. On 17 November 2004, petitioner (as respondent a quo)
filed a Motion to Dismiss[8] in Civil Case No. 0193 on the ground of
lack of jurisdiction of the Sandiganbayan over forfeiture proceedings
under R.A. No. 1379. On even date, petitioner filed the
present Petition, raising the same issue of lack jurisdiction on the
part of the Sandiganbayan.

Petitioner argues in this Petition that the Sandiganbayan is without

jurisdiction over the civil action for forfeiture of unlawfully acquired
properties under R.A. No. 1379, maintaining that such jurisdiction
actually resides in the Regional Trial Courts as provided under Sec.
2[9] of the law, and that the jurisdiction of the Sandiganbayan in
civil actions pertains only to separate actions for recovery of
unlawfully acquired property against President Marcos, his family,
and cronies as can be gleaned from Sec. 4 of Presidential Decree
(P.D.) No. 1606,[10] as amended, and Executive Orders (E.O.) Nos.
14[11] and 14-A.[12]

Theorizing that the Sandiganbayan, under P.D. No. 1606 or the law
creating it, was intended principally as a criminal court, with no
jurisdiction over separate civil actions, petitioner points to President
Corazon C. Aquinos issuances after the EDSA Revolution, namely:
(1) E.O. No. 1 creating the Presidential Commission on Good
Government (PCGG) for the recovery of ill-gotten wealth amassed by
President Ferdinand E. Marcos, his family and cronies, (2) E.O. No.
14 which amended P.D. No. 1606 and R.A. No. 1379 by transferring
to the Sandiganbayan jurisdiction over civil actions filed against
President Marcos, his family and cronies based on R.A. No. 1379,
the Civil Code and other existing laws, and (3) E.O. No. 14-A whch
further amended E.O. No. 14, P.D. No. 1606 and R.A. No. 1379 by
providing that the civil action under R.A. No. 1379 which may be
filed against President Marcos, his family and cronies, may proceed
independently of the criminal action.

Petitioner gathers from the presidential issuances that the

Sandiganbayan has been granted jurisdiction only over the separate
civil actions filed against President Marcos, his family and cronies,
regardless of whether these civil actions were for recovery of
unlawfully acquired property under R.A. No. 1379 or for restitution,
reparation of damages or indemnification for consequential
damages or other civil actions under the Civil Code or other existing
laws. According to petitioner, nowhere in the amendments to P.D.
No. 1606 and R.A. No. 1379 does it provide that the Sandiganbayan
has been vested jurisdiction over separate civil actions other than
those filed against President Marcos, his family and
cronies.[13] Hence, the Sandiganbayan has no jurisdiction over any
separate civil action against him, even if such separate civil action
is for recovery of unlawfully acquired property under R.A. No. 1379.

Petitioner further contends that in any event, the petition for

forfeiture filed against him is fatally defective for failing to comply
with the jurisdictional requirements under Sec. 2, R.A. No.
1379, [14] namely: (a) an inquiry similar to a preliminary
investigation conducted by the prosecution arm of the government;
(b) a certification to the Solicitor General that there is reasonable
ground to believe that there has been violation of the said law and
that respondent is guilty thereof; and (c) an action filed by the
Solicitor General on behalf of the Republic of the Philippines.[15] He
argues that only informations for perjury were filed and there has
been no information filed against him for violation of R.A. No. 1379.
Consequently, he maintains, it is impossible for the Office of the
Ombudsman to certify that there is reasonable ground to believe
that a violation of the said law had been committed and that he is
guilty thereof. The petition is also supposedly bereft of the required
certification which should be made by the investigating City or
Provincial Fiscal (now Prosecutor) to the Solicitor General.
Furthermore, he opines that it should have been the Office of the
Solicitor General which filed the petition and not the Office of the
Ombudsman as in this case. The petition being fatally defective, the
same should have been dismissed, petitioner concludes.
In their Comment,[16] respondents submit the contrary, noting that
the issues raised by petitioner are not novel as these have been
settled in Republic vs. Sandiganbayan[17] which categorically ruled
that there is no issue that jurisdiction over violations of [R.A.] Nos.
3019 and 1379 now rests with the Sandiganbayan.[18] Respondents
argue that under the Constitution[19] and prevailing statutes, the
Sandiganbayan is vested with authority and jurisdiction over the
petition for forfeiture under R.A. No. 1379 filed against petitioner.
Respondents point to Sec. 4.a (1) (d) of P.D. 1606, as amended, as
the prevailing law on the jurisdiction of the Sandiganbayan, thus:

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:

(d) Philippine army and air force colonels, naval

captains, and all officers of higher ranks;

.
As petitioner falls squarely under the category of public positions
covered by the aforestated law, the petition for forfeiture should be
within the jurisdiction of the Sandiganbayan.

Respondents also brush off as inconsequential petitioners argument

that the petition for forfeiture is civil in nature and the
Sandiganbayan, having allegedly no jurisdiction over civil actions,
therefore has no jurisdiction over the petition, since the same P.D.
No. 1606 encompasses all cases involving violations of R.A. No.
3019, irrespective of whether these cases are civil or criminal in
nature. The petition for forfeiture should not be confused with the
cases initiated and prosecuted by the PCGG pursuant to E.O. Nos.
14 and 14-A, as these are dealt with under a separate
subparagraph of P.D. No. 1606, as amended, in particular Sec. 4.c
thereof.[20] Further, respondents stress that E.O. Nos. 14 and 14-A
exclusively apply to actions for recovery of unlawfully acquired
property against President Marcos, his family, and cronies. It would
also not be accurate to refer to a petition for forfeiture as a civil
case, since it has been held that petitions for forfeiture are deemed
criminal or penal and that it is only the proceeding for its
prosecution which is civil in nature.[21]

The Office of the Ombudsman filed a separate Comment,[22] likewise

relying on Republic v. Sandiganbayan to argue that the
Sandiganbayan has jurisdiction over the petition for forfeiture filed
against petitioner. The Ombudsman explains that the grant to the
Sandiganbayan of jurisdiction over violations of R.A. No. 1379 did
not change even under the amendments of

R.A. No. 7975[23] and R.A. No. 8294[24], although it came to be

limited to cases involving high-ranking public officials as
enumerated therein, including Philippine army and air force
colonels, naval captains, and all other officers of higher rank, to
which petitioner belongs.[25]

In arguing that it has authority to investigate and initiate

forfeiture proceedings against petitioner, the Office of the
Ombudsman refers to both the Constitution[26] and R.A. No.
6770.[27] The constitutional power of investigation of the Office of
the Ombudsman is plenary and unqualified; its power to investigate
any act of a public official or employee which appears to be illegal,
unjust, improper or inefficient covers the unlawful acquisition of
wealth by public officials as defined under R.A. No. 1379.
Furthermore, Sec. 15 (11)[28] of R.A. No. 6770 expressly empowers
the Ombudsman to investigate and prosecute such cases of
unlawful acquisition of wealth. This authority of the Ombudsman
has been affirmed also in Republic vs. Sandiganbayan.[29]
The Office of the Ombudsman then refutes petitioners allegation
that the petition for forfeiture filed against him failed to comply with
the procedural and formal requirements under the law. It asserts
that all the requirements of R.A. No. 1379 have been strictly
complied with. An inquiry similar to a preliminary investigation was
conducted by a Prosecution Officer of the Office of the Ombudsman.
The participation of the Office of the Solicitor General, claimed by
petitioner to be necessary, is actually no longer required since the
Office of the Ombudsman is endowed with the authority to
investigate and prosecute the case as discussed above.[30]

In addition, the Office of the Ombudsman alleges that the

present Petition should be dismissed for blatant forum-shopping.
Even as petitioner had filed a Motion to Dismiss as regards the
petition for forfeiture (docketed as Civil Case No. 0193) before the
Sandiganbayan on the ground of the Sandiganbayans alleged lack
of jurisdiction, he filed the instant Petition raising exactly the same
issue, even though the Motion to Dismiss in Civil Case No. 0193 is
still pending resolution. Worse, it appears that the Motion to
Dismiss and the instant Petition were filed on the same day, 17
November 2004.
Petitioner refutes these arguments in his Reply[31] and
enunciates that the Sandiganbayans criminal jurisdiction is
separate and distinct from its civil jurisdiction, and that the
Sandiganbayans jurisdiction over forfeiture cases had been removed
without subsequent amendments expressly restoring such civil
jurisdiction. His thesis is that R.A. No. 1379 is a special law which
is primarily civil and remedial in nature, the clear intent of which is
to separate the prima facie determination in forfeiture proceedings
from the litigation of the civil action. This intent is further
demonstrated by Sec. 2 of R.A. No. 1379 which grants the authority
to make an inquiry similar to a preliminary investigation being done
by the City or Provincial Fiscal, and the authority to file a petition
for forfeiture to the Solicitor General.

Petitioner also points out in his Reply[32] to the Comment of the

Office of the Ombudsman, that the use of the phrase violations of
[R.A.] Nos. 3019 and 1379 in P.D. No. 1606, as amended, implies
jurisdiction over cases which are principally criminal or penal in
nature because the concept of violation of certain laws necessarily
carries with it the concept of imposition of penalties for such
violation. Hence, when reference was made to violations of [R.A.]
Nos. 3019 and 1379, the only jurisdiction that can supposedly be
implied is criminal jurisdiction, not civil jurisdiction, thereby
highlighting respondent Sandiganbayans lack of jurisdiction over
the civil case for forfeiture of ill-gotten wealth. Of course, petitioner
does not rule out cases where the crime carries with it the
corresponding civil liability such that when the criminal action is
instituted, the civil action for enforcement of the civil liability is
impliedly instituted with it, and the court having jurisdiction over
the criminal action also acquires jurisdiction over the ancillary civil
action. However, petitioner argues that the action for forfeiture
subject of this case is not the ancillary civil action impliedly
instituted with the criminal action. Rather, the petition for forfeiture
is an independent civil action over which the Sandiganbayan has no
jurisdiction. Petitioner points to P.D. No. 1606, as amended, which
treats of independent civil actions only in the last paragraph of Sec.
4 thereof:

Any provisions of law or Rules of Court to the contrary

notwithstanding, the criminal action and the corresponding
civil action for the recovery of civil liability shall at all times
be simultaneously instituted with, and jointly determined
in, the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being
deemed to necessarily carry with it the filing of the civil
action, and no right to reserve the filing of such civil action
separately from the criminal action shall be
recognized: Provided, however, That where the civil action
had heretofore been filed separately but judgment therein
has not yet been rendered, and the criminal case is
hereafter filed with the Sandiganbayan or the appropriate
court, said civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the case may
be, for consolidation and joint determination with the
criminal action, otherwise the separate civil action shall be
deemed abandoned.

Petitioner however did not raise any argument to refute the charge
of forum-shopping.

The issues for resolution are: (a) whether the Sandiganbayan has
jurisdiction over petitions for forfeiture under R.A. No. 1379; (b)
whether the Office of the Ombudsman has the authority to
investigate, initiate and prosecute such petitions for forfeiture; and
(c) whether petitioner is guilty of forum-shopping.
The petition is patently without merit. It should be dismissed.

The seminal decision of Republic v. Sandiganbayan[33] squarely rules

on the issues raised by petitioner concerning the jurisdiction of the
Sandiganbayan and the authority of the Office of the Ombudsman.
After reviewing the legislative history of the Sandiganbayan and the
Office of the Ombudsman, the Court therein resolved the question
of jurisdiction by the Sandiganbayan over violations of R.A. No.
3019 and R.A. No. 1379. Originally, it was the Solicitor General who
was authorized to initiate forfeiture proceedings before the then
Court of First Instance of the city or province where the public
officer or employee resides or holds office, pursuant to Sec. 2 of R.A.
No. 1379. Upon the creation of the Sandiganbayan pursuant to P.D.
No. 1486,[34] original and exclusive jurisdiction over such violations
was vested in the said court.[35] P.D. No. 1606[36] was later issued
expressly repealing P.D. No. 1486, as well as modifying the
jurisdiction of the Sandiganbayan by removing its jurisdiction over
civil actions brought in connection with crimes within the exclusive
jurisdiction of said court.[37] Such civil actions removed from the
jurisdiction of the Sandigabayan include those for restitution or
reparation of damages, recovery of instruments and effects of the
crime, civil actions under Articles 32 and 34 of the Civil Code, and
forfeiture proceedings provided for under R.A. No. 1379.[38]

Subsequently, Batas Pambansa Blg. 129[39] abolished the

concurrent jurisdiction of the Sandiganbayan and the regular
courts and expanded the exclusive original jurisdiction of the
Sandiganbayan over the offenses enumerated in Sec. 4 of P.D. No.
1606 to embrace all such offenses irrespective of the imposable
penalty. Since this change resulted in the proliferation of the filing
of cases before the Sandiganbayan where the offense charged is
punishable by a penalty not higher than prision correccional or its
equivalent, and such cases not being of a serious nature, P.D. No.
1606 was again amended by P.D. No. 1860[40] and eventually by
P.D. No. 1861.[41]
On the foregoing premises alone, the Court in Republic v.
Sandiganbayan, deduced that jurisdiction over violations of R.A.
No. 3019 and 1379 is lodged with the Sandiganbayan.[42] It could
not have taken into consideration R.A. No. 7975[43] and R.A. No.
8249[44] since both statutes which also amended the jurisdiction of
the Sandiganbayan were not yet enacted at the time. The
subsequent enactments only serve to buttress the conclusion that
the Sandiganbayan indeed has jurisdiction over violations of R.A.
No. 1379.

Under R.A. No. 8249, the Sandiganbayan is vested with

exclusive original jurisdiction in all cases involving violations of R.A.
No. 3019, R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused are
officials occupying the following positions 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
989 (R.A. No. 6758), specifically including: (a) Provincial governors,
vice-governors, members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and other city
department heads; (b) City mayor, 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
superintended 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 government-owned or controlled
corporations, state universities or educational institutions or
foundations; (2) Members of Congress and 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) Chairmen and
members of Constitutional Commission, without prejudice to the
provisions of the Constitution; and (5) All other national and local
officials classified as Grade '27' and higher under the Compensation
and Position Classification Act of 1989.[45]

In the face of the prevailing jurisprudence and the present state of

statutory law on the jurisdiction of the Sandiganbayan, petitioners
argumentthat the Sandiganbayan has no jurisdiction over the
petition for forfeiture it being civil in nature and the Sandiganbayan
allegedly having no jurisdiction over civil actionscollapses
completely.

The civil nature of an action for forfeiture was first recognized

in Republic v. Sandiganbayan, thus: [T]he rule is settled that
forfeiture proceedings are actions in rem and, therefore, civil in
nature.[46] Then, Almeda, Sr.
v. Perez,[47] followed, holding that the proceedings under R.A. No.
1379 do not terminate in the imposition of a penalty but merely in
the forfeiture of the properties illegally acquired in favor of the
State. It noted that the
procedure outlined in the law leading to forfeiture is that provided
for in a civil action.[48]

However, the Court has had occasion to rule that forfeiture of

illegally acquired property partakes the nature of a penalty.
In Cabal v. Kapunan, Jr.,[49] the Court cited voluminous authorities
in support of its declaration of the criminal or penal nature of
forfeiture proceedings, viz:

In a strict signification, a forfeiture is a divestiture of

property without compensation, in consequence of a default
or an offense, and the term is used in such a sense in this
article. A forfeiture, as thus defined, is imposed by way of
punishment not by the mere convention of the parties, but
by the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature
to restrain the commission of an offense and to aid in the
prevention of such an offense. The effect of such a forfeiture
is to transfer the title to the specific thing from the owner to
the sovereign power. (23 Am. Jur. 599)

"In Black's Law Dictionary a 'forfeiture' is defined to

be 'the incurring of a liability to pay a definite sum of
money as the consequence of violating the provisions of
some statute or refusal to comply with some requirement of
law.' It may be said to be a penalty imposed for misconduct
or breach of duty.'" (Com. vs. French, 114 S.W. 255.)
.

"Generally speaking, informations for the forfeiture of

goods that seek no judgment of fine or imprisonment
against any person are deemed to be civil proceedings in
rem. Such proceedings are criminal in nature to the extent
that where the person using the res illegally is the owner of
rightful possessor of it the forfeiture proceeding is in the
nature of a punishment. They have been held to be so far in
the nature of

criminal proceedings that a general verdict on several

counts in an information is upheld if one count is good.
According to the authorities such proceedings, where the
owner of the property appears, are so far considered as
quasicriminal proceedings as to relieve the owner from
being a witness against himself and to prevent the
compulsory production of his books and papers. . . ." (23
Am. Jur. 612)
.

Proceedings for forfeitures are generally considered to

be civil and in the nature of proceedings in rem. The statute
providing that no judgment or other proceedings in civil
causes shall be arrested or reversed for any defect or want
of form is applicable to them. In some aspects, however,
suits for penalties and forfeitures are of quasi-criminal
nature and within the reason of criminal proceedings for all
 the purposes of . . . that portion of the Fifth Amendment
which declares that no person shall be compelled in any
criminal case to be a witness against himself. The
proceeding is one against the owner, as well as against the
goods; for it is his breach of the laws which has to be
proved to establish the forfeiture and his property is sought
to be forfeited." (15 Am. Jur., Sec. 104, p. 368)[50]

Cabal v. Kapunan modified the earlier ruling in Almeda, Sr. v.

Perez.[51] The Court in Cabal held that the doctrine laid down
in Almeda refers to the purely procedural aspect of the forfeiture
proceedings and has no bearing on the substantial rights of
respondents, particularly their constitutional right against self-
incrimination.[52] This was reaffirmed and reiterated in

Republic v. Agoncillo[53] and Katigbak v. Solicitor General.[54]

The Sandiganbayan is vested with jurisdiction over violations

of R.A. No. 1379, entitled An Act Declaring Forfeiture In Favor of the
State Any Property Found to Have Been Unlawfully Acquired By Any
Public Officer or Employee and Providing For the Proceedings
Therefor. What acts would constitute a violation of such a law? A
reading of R.A. No. 1379 establishes that it does not enumerate any
prohibited acts the commission of which would necessitate the
imposition of a penalty. Instead, it provides the procedure for
forfeiture to be followed in case a public officer or employee has
acquired during his incumbency an amount of property manifestly
out of proportion to his salary as such public officer or employee
and to his lawful income and income from legitimately acquired
property.[55] Section 12[56] of the law provides a penalty but it is only
imposed upon the public officer or employee who transfers or
conveys the unlawfully acquired property; it does not penalize the
officer or employee for making the unlawful acquisition. In effect, as
observed in Almeda, Sr. v. Perez, it imposes the penalty of forfeiture
of the properties unlawfully acquired upon the respondent public
officer or employee.[57]

It is logically congruent, therefore, that violations of R.A. No. 1379

are placed under the jurisdiction of the Sandiganbayan, even
though the proceeding is civil in nature, since the forfeiture of the
illegally acquired property amounts to a penalty. The soundness of
this reasoning becomes even more obvious when we consider that
the respondent in such forfeiture proceedings is a public officer or
employee and the violation of R.A. No. 1379 was committed during
the respondent officer or employees incumbency and in relation to
his office. This is in line with the purpose behind the creation of the
Sandiganbayan as an anti-graft courtto address the urgent problem
of dishonesty in public service.[58]

Following the same analysis, petitioner should therefore abandon

his erroneous belief that the Sandiganbayan has jurisdiction only
over petitions for forfeiture filed against President Marcos, his
family and cronies.

We come then to the question of authority of the Office of the

Ombudsman to investigate, file and

prosecute petitions for forfeiture under R.A. No. 1379. This was the
main issue resolved in Republic v. Sandiganbayan.[59]

Under Sec. 2 of R.A. No. 1379, it was the Solicitor General who
was authorized to initiate forfeiture proceedings before the then
Courts of First Instance. P.D. No. Decree No. 1486 was later issued
on 11 June 1978 vesting the Sandiganbayan with jurisdiction over
R.A. No. 1379 forfeiture proceedings. Sec. 12 of P.D. No. 1486 gave
the Chief Special Prosecutor the authority to file and prosecute
forfeiture cases. This may be taken as an implied repeal by P.D. No.
1486 of the jurisdiction of the former Courts of First Instance and
the authority of the Solicitor General to file a petition for forfeiture
under Sec. 2 of R.A. No. 1379 by transferring said jurisdiction and
authority to the Sandiganbayan and the Chief Special Prosecutor,
respectively.[60] An implied repeal is one which takes place when a
new law contains some provisions which are contrary to, but do not
expressly repeal those of a former law.[61] As a rule, repeals by
implication are not favored and will not be so declared unless it be
manifest that the legislature so intended. Before such repeal is
deemed to exist, it must be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be
inconsistent with the former. The language used in the latter
statute must be such as to render it irreconcilable with what had
been formerly enacted. An inconsistency that falls short of that
standard does not suffice. What is needed is a manifest indication
of the legislative purpose to repeal.[62]

P.D. No. 1486 contains a repealing clause which provides that

[A]ny provision of law, order, rule or regulation inconsistent with
the provisions of this Decree is hereby repealed or modified
accordingly.[63] This is not an express repealing clause because it
fails to identify or designate the statutes that are intended to be
repealed. Rather, it is a clause which predicates the intended repeal
upon the condition that a substantial conflict must be found in
existing and prior laws.[64]

The conflict between P.D. No. 1486 and R.A. No. 1379 refers to
the jurisdiction over the forfeiture proceeding and the authority to
file the petition for forfeiture. As P.D. No. 1486 grants exclusive
jurisdiction and authority to the Sandiganbayan and the Chief
Special Prosecutor, the then Courts of First Instance and Solicitor
General cannot exercise concurrent jurisdiction or authority over
such cases. Hence, P.D. No. 1486 and Sec. 2, R.A. No. 1379 are
inconsistent with each other and the former should be deemed to
have repealed the latter.

On 11 June 1978, the same day that P.D. No. 1486 was enacted,
P.D. No. 1487[65] creating the Office of the Ombudsman (then known
as the Tanodbayan) was passed. The Tanodbayan initially had no
authority to prosecute cases falling within the jurisdiction of the
Sandiganbayan as provided in Sec. 4 of P.D. No. 1486, such
jurisdiction being vested in the Chief Special Prosecutor as earlier
mentioned.

On 10 December 1978, P.D. No. 1606 was enacted expressly

repealing P.D. No. 1486. Issued on the same date was P.D. No.
1607[66] which amended the powers of the Tanodbayan to
investigate administrative complaints[67] and created the Office of
the Chief Special Prosecutor.[68]P.D. No. 1607 provided said Office of
the Chief Special Prosecutor with exclusive authority to conduct
preliminary investigation of all cases cognizable by the
Sandiganbayan, file informations therefor, and direct and control
the prosecution of said cases.[69] P.D. No. 1607 also removed from
the Chief Special Prosecutor the authority to file actions for
forfeiture under R.A. No. 1379.[70]
The rule is that when a law which expressly repeals a prior law
is itself repealed, the law first repealed shall not be thereby revived
unless expressly so provided. From this it may fairly be inferred
that the old rule continues in force where a law which repeals a
prior law, not expressly but by implication, is itself repealed; and
that in such cases the repeal of the repealing law revives the prior
law, unless the language of the repealing statute provides
otherwise.[71] Hence, the repeal of P.D. No. 1486 by P.D. No. 1606
necessarily revived the authority of the Solicitor General to file a
petition for forfeiture under R.A. No. 1379, but not the jurisdiction
of the Courts of First Instance over the case nor the authority of the
Provincial or City Fiscals (now Prosecutors) to conduct the
preliminary investigation therefore, since said powers at that time
remained in the Sandiganbayan and the Chief Special
Prosecutor.[72]

The Tanodbayans authority was further expanded by P.D. No.

1630[73] issued on 18 July 1990. Among other things, the
Tanodbayan was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the
Sandiganbayan, to file informations therefore and to direct and
control the prosecution of said cases.[74] The power to conduct the
necessary investigation and to file and prosecute the corresponding
criminal and administrative cases before the Sandiganbayan or the
proper court or administrative agency against any public personnel
who has acted in a manner warranting criminal and disciplinary
action or proceedings was also transferred from the Chief Special
Prosecutor to the Tanodbayan.[75]

Thereafter, P.D. No. 1606 was amended by P.D. Nos. 1860 and
1861[76] which granted the Tanodbayan the same authority. The
present Constitution was subsequently ratified and then the
Tanodbayan became known as the Office of the Special Prosecutor
which continued to exercise its powers except those conferred on
the Office of the Ombudsman created under the
Constitution. The Office of the Ombudsman was officially created
[77]

under R.A. No. 6770.[78]

At present, the powers of the Ombudsman, as defined by R.A. No.

6770, corollary to Sec. 13, Art. XI of the Constitution, include the
authority, among others, to:

(1) Investigate and prosecute on its own or on

complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable
by the Sandiganbayan and, in the exercise of this primary
jurisdiction, may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases;[79]
(11) Investigate and initiate the proper action for the
recovery of ill-gotten and/or unexplained wealth amassed
after 25 February 1986 and the prosecution of the parties
involved therein.[80]
 Ostensibly, it is the Ombudsman who should file the petition
for forfeiture under R.A. No. 1379. However, the Ombudsmans
exercise of the correlative powers to investigate and initiate the
proper action for recovery of ill-gotten and/or unexplained wealth is
restricted only to cases for the recovery of ill-gotten and/or
unexplained wealth amassed after 25 February 1986.[81] As regards
such wealth accumulated on or before said date, the Ombudsman
is without authority to commence before the Sandiganbayan such
forfeiture actionsince the authority to file forfeiture proceedings on
or before 25 February 1986 belongs to the Solicitor
Generalalthough he has the authority to investigate such cases for
forfeiture even before 25 February 1986, pursuant to the
Ombudsmans general investigatory power under Sec. 15 (1) of R.A.
No. 6770.[82]

It is obvious then that respondent Office of the Ombudsman

acted well within its authority in conducting the investigation of
petitioners illegally acquired assets and in filing the petition for
forfeiture against him. The contention that the procedural
requirements under Sec. 2 of R.A. No. 1379 were not complied with
no longer deserve consideration in view of the foregoing discussion.

Now to the charge that petitioner is guilty of forum-shopping.

Forum-shopping is manifest whenever a party repetitively avail[s] of
several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions
and the same essential facts and circumstances, and all raising
substantially the same issues either pending in, or already resolved
adversely by, some other court.[83] It has also been defined as an act
of a party against whom an adverse judgment has been rendered in
one forum of seeking and possibly getting a favorable opinion in
another forum, other than by appeal or the special civil action of
certiorari, or the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the
other court would make a favorable disposition.[84] Considered a
pernicious evil, it adversely affects the efficient administration of
justice since it clogs the court dockets, unduly burdens the
financial and human resources of the judiciary, and trifles with and
mocks judicial processes.[85] Willful and deliberate forum-shopping
is a ground for summary dismissal of the complaint or initiatory
pleading with prejudice and constitutes direct contempt of court, as
well as a cause for administrative sanctions, which may both be
resolved and imposed in the same case where the forum-shopping
is found.[86]

There is ample reason to hold that petitioner is guilty of forum-

shopping. The present petition was filed accompanied by the
requisite Verification and Certification Against Forum Shopping[87] in
which petitioner made the following representation:

3.] As Petitioner, I have not heretofore commenced any

other action or proceeding in the Supreme Court, the
Court of Appeals, or any other tribunal or agency,
involving the same issues as that in the above-captioned
case.

4.] To the best of my knowledge, no such action or

proceeding is pending in the Supreme Court, the Court
of Appeals, or any other tribunal or agency.

5.] If I should hereafter learn that such proceeding has

been commenced or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or
agency, I undertake to report that fact to this Honorable
Court within five (5) days from knowledge thereof.

However, petitioner failed to inform the Court that he had filed

a Motion to Dismiss[88] in relation to the petition for forfeiture before
the Sandiganbayan. The existence of this motion was only brought
to the attention of this Court by respondent Office of the
Ombudsman in its Comment. A scrutiny of the Motion to
Dismiss reveals that petitioner raised substantially the same issues
and prayed for the same reliefs therein as it has in the instant
petition. In fact, the Arguments and Discussion[89] in the Petition of
petitioners thesis that the Sandiganbayan has no jurisdiction over
separate civil actions for forfeiture of unlawfully acquired properties
appears to be wholly lifted from the Motion to Dismiss. The only
difference between the two is that in the Petition, petitioner raises
the ground of failure of the petition for forfeiture to comply with the
procedural requirements of R.A. No. 1379, and petitioner prays for
the annulment of the Sandiganbayans Resolution dated 29 October
2004 and Writ of Preliminary Attachment dated 2 November 2004.
Nevertheless, these differences are only superficial.
Both Petition and Motion to Dismiss have the same intent of
dismissing the case for forfeiture filed against petitioner, his wife
and their sons. It is undeniable that petitioner had failed to fulfill
his undertaking. This is incontestably forum-shopping which is
reason enough to dismiss the petition outright, without prejudice to
the taking of appropriate action against the counsel and party
concerned.[90] The brazenness of this attempt at forum-shopping is
even demonstrated by the fact that both the Petition and Motion to
Dismiss were filed on the same day, 17 November 2004. Petitioner
should have waited for the resolution of his Motion to Dismiss before
resorting to the petition at hand.

Petitioners counsel of record, Atty. Constantino B. De Jesus,

needs to be reminded that his primary duty is to assist the courts
in the administration of justice. As an officer of the court, his duties
to the court are more significant and important than his obligations
to his clients. Any conduct which tends to delay, impede or obstruct
the administration thereof contravenes his oath of office.[91] Atty. De
Jesus failed to accord due regard, as he must, the tenets of the
legal profession and the mission of our courts of justice. For this, he
should be penalized. Penalties imposed upon lawyers who engaged
in forum-shopping range from severe censure to suspension from
the practice of law.[92] In the instant case, we deem the imposition of
a fine in the amount of P20,000.00 to be sufficient to make Atty. De
Jesus realize the seriousness of his naked abuse of the judicial
process.
WHEREFORE, in view of the foregoing, the Petition is DISMISSED.
Atty. Constantino B. De Jesus is DECLARED in CONTEMPT of this
Court and meted a fine of Twenty Thousand Pesos (P20,000.00) to
be paid within ten (10) days from the finality of this Decision. Costs
against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice
 LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO-MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice
C.1.b.b-1) escobal vs garchitorena, 422 scra

SECOND DIVISION

[G.R. No. 124644. February 5, 2004]

ARNEL ESCOBAL, petitioner, vs. HON. FRANCIS GARCHITORENA,

Presiding Justice of the Sandiganbayan, Atty. Luisabel Alfonso-
Cortez, Executive Clerk of Court IV of the Sandiganbayan, Hon.
David C. Naval, Presiding Judge of the Regional Trial Court of
Naga City, Branch 21, Luz N. Nueca, respondents.

DECISION
CALLEJO, SR., J.:

This is a petition for certiorari with a prayer for the issuance of a temporary
restraining order and preliminary injunction filed by Arnel Escobal seeking the
nullification of the remand by the Presiding Justice of the Sandiganbayan of
the records of Criminal Case No. 90-3184 to the Regional Trial Court (RTC) of
Naga City, Branch 21.
The petition at bench arose from the following milieu:
The petitioner is a graduate of the Philippine Military Academy, a member
of the Armed Forces of the Philippines and the Philippine Constabulary, as
well as the Intelligence Group of the Philippine National Police. On March 16,
1990, the petitioner was conducting surveillance operations on drug trafficking
at the Sa Harong Caf Bar and Restaurant located along Barlin St., Naga City.
He somehow got involved in a shooting incident, resulting in the death of one
Rodney Rafael N. Nueca. On February 6, 1991, an amended Information was
filed with the RTC of Naga City, Branch 21, docketed as Criminal Case No.
90-3184 charging the petitioner and a certain Natividad Bombita, Jr. alias Jun
Bombita with murder. The accusatory portion of the amended Information
reads:

That on or about March 16, 1990, in the City of Naga, Philippines, and within the
jurisdiction of this Honorable Court by virtue of the Presidential Waiver, dated June 1,
1990, with intent to kill, conspiring and confederating together and mutually helping
each other, did, then and there, willfully, unlawfully and feloniously attack, assault
and maul one Rodney Nueca and accused 2Lt Arnel Escobal armed with a caliber .45
service pistol shoot said Rodney Nueca thereby inflicting upon him serious, mortal
and fatal wounds which caused his death, and as a consequence thereof, complainant
LUZ N. NUECA, mother of the deceased victim, suffered actual and compensatory
damages in the amount of THREE HUNDRED SIXTY-SEVEN THOUSAND ONE
HUNDRED SEVEN & 95/100 (P367,107.95) PESOS, Philippine Currency, and
moral and exemplary damages in the amount of ONE HUNDRED THIRTY-FIVE
THOUSAND (P135,000.00) PESOS, Philippine Currency. [1]

On March 19, 1991, the RTC issued an Order preventively suspending the
petitioner from the service under Presidential Decree No. 971, as amended by
P.D. No. 1847. When apprised of the said order, the General Headquarters of
the PNP issued on October 6, 1992 Special Order No. 91, preventively
suspending the petitioner from the service until the case was terminated. [2]

The petitioner was arrested by virtue of a warrant issued by the RTC,

while accused Bombita remained at large. The petitioner posted bail and was
granted temporary liberty.
When arraigned on April 9, 1991, the petitioner, assisted by counsel,
[3]

pleaded not guilty to the offense charged. Thereafter, on December 23, 1991,
the petitioner filed a Motion to Quash the Information alleging that as
[4]

mandated by Commonwealth Act No. 408, in relation to Section 1,

[5]

Presidential Decree No. 1822 and Section 95 of R.A. No. 6975, the court
martial, not the RTC, had jurisdiction over criminal cases involving PNP
members and officers.
Pending the resolution of the motion, the petitioner on June 25, 1993
requested the Chief of the PNP for his reinstatement. He alleged that under
R.A. No. 6975, his suspension should last for only 90 days, and, having
served the same, he should now be reinstated. On September 23, 1993, the [6]

PNP Region V Headquarters wrote Judge David C. Naval requesting

information on whether he issued an order lifting the petitioners
suspension. The RTC did not reply. Thus, on February 22, 1994, the petitioner
filed a motion in the RTC for the lifting of the order of suspension. He alleged
that he had served the 90-day preventive suspension and pleaded for
compassionate justice. The RTC denied the motion on March 9, 1994. Trial [7]

thereafter proceeded, and the prosecution rested its case. The petitioner
commenced the presentation of his evidence. On July 20, 1994, he filed a
Motion to Dismiss the case. Citing Republic of the Philippines v. Asuncion, et
[8]
al., he argued that since he committed the crime in the performance of his
[9]

duties, the Sandiganbayan had exclusive jurisdiction over the case.

On October 28, 1994, the RTC issued an Order denying the motion to
[10]

dismiss. It, however, ordered the conduct of a preliminary hearing to

determine whether or not the crime charged was committed by the petitioner
in relation to his office as a member of the PNP.
In the preliminary hearing, the prosecution manifested that it was no
longer presenting any evidence in connection with the petitioners motion. It
reasoned that it had already rested its case, and that its evidence showed that
the petitioner did not commit the offense charged in connection with the
performance of his duties as a member of the Philippine Constabulary.
According to the prosecution, they were able to show the following facts: (a)
the petitioner was not wearing his uniform during the incident; (b) the offense
was committed just after midnight; (c) the petitioner was drunk when the crime
was committed; (d) the petitioner was in the company of civilians; and, (e) the
offense was committed in a beerhouse called Sa Harong Caf Bar and
Restaurant. [11]

For his part, the petitioner testified that at about 10:00 p.m. on March 15,
1990, he was at the Sa Harong Caf Bar and Restaurant at Barlin St., Naga
City, to conduct surveillance on alleged drug trafficking, pursuant to Mission
Order No. 03-04 issued by Police Superintendent Rufo R. Pulido. The
petitioner adduced in evidence the sworn statements of Benjamin Cario and
Roberto Fajardo who corroborated his testimony that he was on a surveillance
mission on the aforestated date.[12]

On July 31, 1995, the trial court issued an Order declaring that the
petitioner committed the crime charged while not in the performance of his
official function. The trial court added that upon the enactment of R.A. No.
7975, the issue had become moot and academic. The amendatory law
[13]

transferred the jurisdiction over the offense charged from the Sandiganbayan
to the RTC since the petitioner did not have a salary grade of 27 as provided
for in or by Section 4(a)(1), (3) thereof. The trial court nevertheless ordered
the prosecution to amend the Information pursuant to the ruling in Republic v.
Asuncion and R.A. No. 7975. The amendment consisted in the inclusion
[14]

therein of an allegation that the offense charged was not committed by the
petitioner in the performance of his duties/functions, nor in relation to his
office.
The petitioner filed a motion for the reconsideration of the said order,
[15]

reiterating that based on his testimony and those of Benjamin Cario and
Roberto Fajardo, the offense charged was committed by him in relation to his
official functions. He asserted that the trial court failed to consider the
exceptions to the prohibition. He asserted that R.A. No. 7975, which was
enacted on March 30, 1995, could not be applied retroactively. [16]

The petitioner further alleged that Luz Nacario Nueca, the mother of the
victim, through counsel, categorically and unequivocably admitted in her
complaint filed with the Peoples Law Enforcement Board (PLEB) that he was
on an official mission when the crime was committed.
On November 24, 1995, the RTC made a volte face and issued an Order
reversing and setting aside its July 31, 1995 Order. It declared that based on
the petitioners evidence, he was on official mission when the shooting
occurred. It concluded that the prosecution failed to adduce controverting
evidence thereto. It likewise considered Luz Nacario Nuecas admission in her
complaint before the PLEB that the petitioner was on official mission when the
shooting happened.
The RTC ordered the public prosecutor to file a Re-Amended Information
and to allege that the offense charged was committed by the petitioner in the
performance of his duties/functions or in relation to his office; and,
conformably to R.A. No. 7975, to thereafter transmit the same, as well as the
complete records with the stenographic notes, to the Sandiganbayan, to wit:

WHEREFORE, the Order dated July 31, 1995 is hereby SET ASIDE and
RECONSIDERED, and it is hereby declared that after preliminary hearing, this Court
has found that the offense charged in the Information herein was committed by the
accused in his relation to his function and duty as member of the then Philippine
Constabulary.

Conformably with R.A. No. 7975 and the ruling of the Supreme Court in Republic v.
Asuncion, et al., G.R. No. 180208, March 11, 1994:

(1) The City Prosecutor is hereby ordered to file a Re-Amended

Information alleging that the offense charged was committed by
the Accused in the performance of his duties/functions or in
relation to his office, within fifteen (15) days from receipt hereof;

(2) After the filing of the Re-Amended Information, the complete records
of this case, together with the transcripts of the stenographic notes
taken during the entire proceedings herein, are hereby ordered
transmitted immediately to the Honorable Sandiganbayan,
through its Clerk of Court, Manila, for appropriate proceedings. [17]
 On January 8, 1996, the Presiding Justice of the Sandiganbayan ordered
the Executive Clerk of Court IV, Atty. Luisabel Alfonso-Cortez, to return the
records of Criminal Case No. 90-3184 to the court of origin, RTC of Naga City,
Branch 21. It reasoned that under P.D. No. 1606, as amended by R.A. No.
7975, the RTC retained jurisdiction over the case, considering that the
[18]

petitioner had a salary grade of 23. Furthermore, the prosecution had already
rested its case and the petitioner had commenced presenting his evidence in
the RTC; following the rule on continuity of jurisdiction, the latter court should
continue with the case and render judgment therein after trial.
Upon the remand of the records, the RTC set the case for trial on May 3,
1996, for the petitioner to continue presenting his evidence. Instead of
adducing his evidence, the petitioner filed a petition for certiorari, assailing the
Order of the Presiding Justice of the Sandiganbayan remanding the records of
the case to the RTC.
The threshold issue for resolution is whether or not the Presiding Justice
of the Sandiganbayan committed a grave abuse of his discretion amounting to
excess or lack of jurisdiction in ordering the remand of the case to the RTC.
The petitioner contends that when the amended information was filed with
the RTC on February 6, 1991, P.D. No. 1606 was still in effect. Under Section
4(a) of the decree, the Sandiganbayan had exclusive jurisdiction over the
case against him as he was charged with homicide with the imposable penalty
of reclusion temporal, and the crime was committed while in the performance
of his duties. He further asserts that although P.D. No. 1606, as amended by
P.D. No. 1861 and by R.A. No. 7975 provides that crimes committed by
members and officers of the PNP with a salary grade below 27 committed in
relation to office are within the exclusive jurisdiction of the proper RTC, the
amendment thus introduced by R.A. No. 7975 should not be applied
retroactively. This is so, the petitioner asserts, because under Section 7 of
R.A. No. 7975, only those cases where trial has not begun in the
Sandiganbayan upon the effectivity of the law should be referred to the proper
trial court.
The private complainant agrees with the contention of the petitioner. In
contrast, the Office of the Special Prosecutor contends that the Presiding
Justice of the Sandiganbayan acted in accordance with law when he ordered
the remand of the case to the RTC. It asserts that R.A. No. 7975 should be
applied retroactively. Although the Sandiganbayan had jurisdiction over the
crime committed by the petitioner when the amended information was filed
with the RTC, by the time it resolved petitioners motion to dismiss on July 31,
1995, R.A. No. 7975 had already taken effect. Thus, the law should be given
retroactive effect.

The Ruling of the Court

The respondent Presiding Justice acted in accordance with law and the
rulings of this Court when he ordered the remand of the case to the RTC, the
court of origin.
The jurisdiction of the court over criminal cases is determined by the
allegations in the Information or the Complaint and the statute in effect at the
time of the commencement of the action, unless such statute provides for a
retroactive application thereof. The jurisdictional requirements must be alleged
in the Information. Such jurisdiction of the court acquired at the inception of
[19]

the case continues until the case is terminated. [20]

Under Section 4(a) of P.D. No. 1606 as amended by P.D. No. 1861, the
Sandiganbayan had exclusive jurisdiction in all cases involving the following:

(1) 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 of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation
to their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the penalty
prescribed by law is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00 .
[21]

However, for the Sandiganbayan to have exclusive jurisdiction under the

said law over crimes committed by public officers in relation to their office, it is
essential that the facts showing the intimate relation between the office of the
offender and the discharge of official duties must be alleged in the
Information. It is not enough to merely allege in the Information that the crime
charged was committed by the offender in relation to his office because that
would be a conclusion of law. The amended Information filed with the RTC
[22]

against the petitioner does not contain any allegation showing the intimate
relation between his office and the discharge of his duties. Hence, the RTC
had jurisdiction over the offense charged when on November 24, 1995, it
ordered the re-amendment of the Information to include therein an allegation
that the petitioner committed the crime in relation to office. The trial court
erred when it ordered the elevation of the records to the Sandiganbayan. It
bears stressing that R.A. No. 7975 amending P.D. No. 1606 was already in
effect and under Section 2 of the law:

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 No. 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 jurisdiction as provided in Batas Pambansa Blg. 129.

Under the law, even if the offender committed the crime charged in
relation to his office but occupies a position corresponding to a salary grade
below 27, the proper Regional Trial Court or Municipal Trial Court, as the case
may be, shall have exclusive jurisdiction over the case. In this case, the
petitioner was a Police Senior Inspector, with salary grade 23. He was
charged with homicide punishable by reclusion temporal. Hence, the RTC had
exclusive jurisdiction over the crime charged conformably to Sections 20 and
32 of Batas Pambansa Blg. 129, as amended by Section 2 of R.A. No. 7691.
The petitioners contention that R.A. No. 7975 should not be applied
retroactively has no legal basis. It bears stressing that R.A. No. 7975 is a
substantive procedural law which may be applied retroactively. [23]

IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. No

pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.
C.1.b.b-2 people vs henry t go

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 168539 March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HENRY T. GO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari assailing the Resolution1 of the Third Division2 of
the Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein
respondent for alleged violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise
known as the Anti-Graft and Corrupt Practices Act.

The Information filed against respondent is an offshoot of this Court's Decision3 in Agan, Jr. v.
Philippine International Air Terminals Co., Inc. which nullified the various contracts awarded by the
Government, through the Department of Transportation and Communications (DOTC), to Philippine
Air Terminals, Co., Inc. (PIATCO) for the construction, operation and maintenance of the Ninoy
Aquino International Airport International Passenger Terminal III (NAIA IPT III). Subsequent to the
above Decision, a certain Ma. Cecilia L. Pesayco filed a complaint with the Office of the
Ombudsman against several individuals for alleged violation of R.A. 3019. Among those charged
was herein respondent, who was then the Chairman and President of PIATCO, for having
supposedly conspired with then DOTC Secretary Arturo Enrile (Secretary Enrile) in entering into a
contract which is grossly and manifestly disadvantageous to the government.

On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to
indict, among others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was
likewise a finding of probable cause against Secretary Enrile, he was no longer indicted because he
died prior to the issuance of the resolution finding probable cause.

Thus, in an Information dated January 13, 2005, respondent was charged before the SB as follows:

On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then
Secretary of the Department of Transportation and Communications (DOTC), committing the offense
in relation to his office and taking advantage of the same, in conspiracy with accused, HENRY T.
GO, Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did
then and there, willfully, unlawfully and criminally enter into a Concession Agreement, after the
project for the construction of the Ninoy Aquino International Airport International Passenger
Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which Concession
Agreement substantially amended the draft Concession Agreement covering the construction of the
NAIA IPT III under Republic Act 6957, as amended by Republic Act 7718 (BOT law), specifically the
provision on Public Utility Revenues, as well as the assumption by the government of the liabilities of
PIATCO in the event of the latter's default under Article IV, Section 4.04 (b) and (c) in relation to
Article 1.06 of the Concession Agreement, which terms are more beneficial to PIATCO while
manifestly and grossly disadvantageous to the government of the Republic of the Philippines.4

The case was docketed as Criminal Case No. 28090.

On March 10, 2005, the SB issued an Order, to wit:

The prosecution is given a period of ten (10) days from today within which to show cause why this
case should not be dismissed for lack of jurisdiction over the person of the accused considering that
the accused is a private person and the public official Arturo Enrile, his alleged co-conspirator, is
already deceased, and not an accused in this case.5

The prosecution complied with the above Order contending that the SB has already acquired
jurisdiction over the person of respondent by reason of his voluntary appearance, when he filed a
motion for consolidation and when he posted bail. The prosecution also argued that the SB has
exclusive jurisdiction over respondent's case, even if he is a private person, because he was alleged
to have conspired with a public officer.6

On April 28, 2005, respondent filed a Motion to Quash7 the Information filed against him on the
ground that the operative facts adduced therein do not constitute an offense under Section 3(g) of
R.A. 3019. Respondent, citing the show cause order of the SB, also contended that, independently
of the deceased Secretary Enrile, the public officer with whom he was alleged to have conspired,
respondent, who is not a public officer nor was capacitated by any official authority as a government
agent, may not be prosecuted for violation of Section 3(g) of R.A. 3019.

The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:

Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing
that Henry T. Go, the lone accused in this case is a private person and his alleged co-conspirator-
public official was already deceased long before this case was filed in court, for lack of jurisdiction
over the person of the accused, the Court grants the Motion to Quash and the Information filed in
this case is hereby ordered quashed and dismissed.9

Hence, the instant petition raising the following issues, to wit:

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE
IN GRANTING THE DEMURRER TO EVIDENCE AND IN DISMISSING CRIMINAL CASE NO.
28090 ON THE GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF
RESPONDENT GO.

II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE,
IN RULING THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO
DESPITE THE IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS
PROVISIONAL LIBERTY

III

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD
OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE
INFORMATION AND DISMISSED CRIMINAL CASE NO. 2809010

The Court finds the petition meritorious.

Section 3 (g) of R.A. 3019 provides:

Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

xxxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

The elements of the above provision are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the
government.11

At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under
Section 3 of R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain
acts of public officers and private persons alike constituting graft or corrupt practices act or which
may lead thereto.12 This is the controlling doctrine as enunciated by this Court in previous cases,
among which is a case involving herein private respondent.13

The only question that needs to be settled in the present petition is whether herein respondent, a
private person, may be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the
public officer, with whom he was alleged to have conspired, has died prior to the filing of the
Information.

Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who
was charged in the Information and, as such, prosecution against respondent may not prosper.

The Court is not persuaded.

It is true that by reason of Secretary Enrile's death, there is no longer any public officer with whom
respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation
of conspiracy between them can no longer be proved or that their alleged conspiracy is already
expunged. The only thing extinguished by the death of Secretary Enrile is his criminal liability. His
death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between
him and private respondent. Stated differently, the death of Secretary Enrile does not mean that
there was no public officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the
Deputy Ombudsman for Luzon found probable cause to indict Secretary Enrile for infringement of
Sections 3 (e) and (g) of R.A. 3019.14 Were it not for his death, he should have been charged.

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019,
among others, is that such private person must be alleged to have acted in conspiracy with a public
officer. The law, however, does not require that such person must, in all instances, be indicted
together with the public officer. If circumstances exist where the public officer may no longer be
charged in court, as in the present case where the public officer has already died, the private person
may be indicted alone.

Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy.15 If two
or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is,
in contemplation of law, the act of each of them and they are jointly responsible therefor.16 This
means that everything said, written or done by any of the conspirators in execution or furtherance of
the common purpose is deemed to have been said, done, or written by each of them and it makes
no difference whether the actual actor is alive or dead, sane or insane at the time of trial.17 The death
of one of two or more conspirators does not prevent the conviction of the survivor or
survivors.18 Thus, this Court held that:

x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime
depends upon the joint act or intent of two or more persons. Yet, it does not follow that one person
cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not
remove the bases of a charge for conspiracy, one defendant may be found guilty of the offense.19

The Court agrees with petitioner's contention that, as alleged in the Information filed against
respondent, which is deemed hypothetically admitted in the latter's Motion to Quash, he
(respondent) conspired with Secretary Enrile in violating Section 3 (g) of R.A. 3019 and that in
conspiracy, the act of one is the act of all. Hence, the criminal liability incurred by a co-conspirator is
also incurred by the other co-conspirators.

Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative
intent to repress "acts of public officers and private persons alike, which constitute graft or corrupt
practices,"20 would be frustrated if the death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of People v. Peralta21 as to the nature of and
the principles governing conspiracy, as construed under Philippine jurisdiction, is instructive, to wit:

x x x A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Generally, conspiracy is not a crime except when
the law specifically provides a penalty therefor as in treason, rebellion and sedition. The crime of
conspiracy known to the common law is not an indictable offense in the Philippines. An agreement to
commit a crime is a reprehensible act from the view-point of morality, but as long as the conspirators
do not perform overt acts in furtherance of their malevolent design, the sovereignty of the State is
not outraged and the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the
liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in
U.S. vs. Infante and Barreto opined that

While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital importance, when considered together
with the other evidence of record, in establishing the existence, of the consummated crime and its
commission by the conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of
the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the
act of one is the act of all. The foregoing rule is anchored on the sound principle that "when two or
more persons unite to accomplish a criminal object, whether through the physical volition of one, or
all, proceeding severally or collectively, each individual whose evil will actively contributes to the
wrong-doing is in law responsible for the whole, the same as though performed by himself alone."
Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons
agree or conspire to commit a crime, each is responsible for all the acts of the others, done in
furtherance of the agreement or conspiracy." The imposition of collective liability upon the
conspirators is clearly explained in one case where this Court held that x x x it is impossible to
graduate the separate liability of each (conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the commission of which they all acted
by common agreement x x x. The crime must therefore in view of the solidarity of the act and intent
which existed between the x x x accused, be regarded as the act of the band or party created by
them, and they are all equally responsible x x x

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by reason
of the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime. Of course, as to any
conspirator who was remote from the situs of aggression, he could be drawn within the enveloping
ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime
amply justifies the imputation to all of them the act of any one of them. It is in this light that
conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing
criminal liability.

xxxx

x x x A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of
the conspirators who acted in furtherance of the common design are liable as co-principals. This rule
of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise they must be held solidarily
liable.22

This is not to say, however, that private respondent should be found guilty of conspiring with
Secretary Enrile. It is settled that the absence or presence of conspiracy is factual in nature and
involves evidentiary matters.23 Hence, the allegation of conspiracy against respondent is better left
ventilated before the trial court during trial, where respondent can adduce evidence to prove or
disprove its presence.

Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25 that
in a different case, he was likewise indicted before the SB for conspiracy with the late Secretary
Enrile in violating the same Section 3 (g) of R.A. 3019 by allegedly entering into another agreement
(Side Agreement) which is separate from the Concession Agreement subject of the present case.
The case was docketed as Criminal Case No. 28091. Here, the SB, through a Resolution, granted
respondent's motion to quash the Information on the ground that the SB has no jurisdiction over the
person of respondent. The prosecution questioned the said SB Resolution before this Court via a
petition for review on certiorari. The petition was docketed as G.R. No. 168919. In a minute
resolution dated August 31, 2005, this Court denied the petition finding no reversible error on the
part of the SB. This Resolution became final and executory on January 11, 2006. Respondent now
argues that this Court's resolution in G.R. No. 168919 should be applied in the instant case.

The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R.
No. 168919, he already posted bail for his provisional liberty. In fact, he even filed a Motion for
Consolidation26 in Criminal Case No. 28091. The Court agrees with petitioner's contention that
private respondent's act of posting bail and filing his Motion for Consolidation vests the SB with
jurisdiction over his person. The rule is well settled that the act of an accused in posting bail or in
filing motions seeking affirmative relief is tantamount to submission of his person to the jurisdiction of
the court.27

Thus, it has been held that:

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of
arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he
must raise the question of the court’s jurisdiction over his person at the very earliest opportunity. If
he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby
gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

xxxx

As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:

"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly.
When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of
the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the
purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted
himself to that jurisdiction."

Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the
court over the person, it must be for the sole and separate purpose of objecting to said jurisdiction. If
the appearance is for any other purpose, the defendant is deemed to have submitted himself to the
jurisdiction of the court. Such an appearance gives the court jurisdiction over the person."

Verily, petitioner’s participation in the proceedings before the Sandiganbayan was not confined to his
opposition to the issuance of a warrant of arrest but also covered other matters which called for
respondent court’s exercise of its jurisdiction. Petitioner may not be heard now to deny said court’s
jurisdiction over him. x x x.28
In the instant case, respondent did not make any special appearance to question the jurisdiction of
the SB over his person prior to his posting of bail and filing his Motion for Consolidation. In fact, his
Motion to Quash the Information in Criminal Case No. 28090 only came after the SB issued an
Order requiring the prosecution to show cause why the case should not be dismissed for lack of
jurisdiction over his person.

As a recapitulation, it would not be amiss to point out that the instant case involves a contract
entered into by public officers representing the government. More importantly, the SB is a special
criminal court which has exclusive original jurisdiction in all cases involving violations of R.A. 3019
committed by certain public officers, as enumerated in P.D. 1606 as amended by R.A. 8249. This
includes private individuals who are charged as co-principals, accomplices or accessories with the
said public officers. In the instant case, respondent is being charged for violation of Section 3(g) of
R.A. 3019, in conspiracy with then Secretary Enrile. Ideally, under the law, both respondent and
Secretary Enrile should have been charged before and tried jointly by the Sandiganbayan. However,
by reason of the death of the latter, this can no longer be done. Nonetheless, for reasons already
discussed, it does not follow that the SB is already divested of its jurisdiction over the person of and
the case involving herein respondent. To rule otherwise would mean that the power of a court to
decide a case would no longer be based on the law defining its jurisdiction but on other factors, such
as the death of one of the alleged offenders.

Lastly, the issues raised in the present petition involve matters which are mere incidents in the main
case and the main case has already been pending for over nine (9) years. Thus, a referral of the
case to the Regional Trial Court would further delay the resolution of the main case and it would, by
no means, promote respondent's right to a speedy trial and a speedy disposition of his case.

WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated June 2, 2005,
granting respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan
is forthwith DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No.
28090.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

No part, former counsel in related cases

MARIA LOURDES P. A. SERENO
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

(No part)
LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice
 ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

On leave
BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

On leave
MARVIC MARIO VICTOR F. LEONEN*
Associate Justice
C.1.b.b-2 ramiscal vs sandigan 630

SECOND DIVISION

[G.R. Nos. 140576-99. December 13, 2004]

JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE

SANDIGANBAYAN (Fourth Division), ALBANO & ASSOCIATES
and the ASSOCIATION OF GENERALS & FLAG OFFICERS,
INC., respondents.

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari under Rule 45 of the Revised

Rules of Court, of the Resolution of the Sandiganbayan, dated June 9, 1999 in
Criminal Cases Nos. 25122 to 25145, and its Resolution dated October 22,
1999, denying the motion for reconsideration thereof.

The Antecedents

The Armed Forces of the Philippines Retirement and Separation Benefits

System (AFP-RSBS) was established in December 1973 and started its actual
operations in 1976. Created under Presidential Decree (P.D.) No. 361, as
amended, the AFP-RSBS was designed to establish a separate fund to
guarantee continuous financial support to the AFP military retirement system
as provided for in Republic Act No. 340. Under the decree, the AFP-RSBS
[1]

was to be funded from three principal sources: (a) congressional

appropriations and compulsory contributions from members of the AFP; (2)
donations, gifts, legacies, bequests and others to the system; and (3) all
earnings of the system which shall not be subject to any tax
whatsoever. AFP-RSBS is a government-owned or controlled corporation
[2]

(GOCC) under Rep. Act No. 9182, otherwise known as The Special Purpose
Vehicle Act of 2002. It is administered by the Chief of Staff of the AFP through
a Board of Trustees and Management Group. Its funds are in the nature of
[3]

public funds. [4]

 On December 18, 1997, Luwalhati R. Antonino, then a member of the
House of Representatives representing the First District of the Province of
South Cotabato, filed a Complaint-Affidavit with the Office of the Ombudsman
[5]

for Mindanao. She alleged that anomalous real estate transactions involving
the Magsaysay Park at General Santos City and questionable payments of
transfer taxes prejudicial to the government had been entertained into
between certain parties. She then requested the Ombudsman to investigate
the petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then President of the
AFP-RSBS, together with twenty-seven (27) other persons for conspiracy in
[6] [7]

misappropriating AFP-RSBS funds and in defrauding the government millions

of pesos in capital gains and documentary stamp taxes. [8]

On January 28, 1999, after the requisite preliminary investigation, Special

Prosecutor Joy C. Rubillar-Arao filed twenty-four (24) separate Informations
with the Sandiganbayan against the petitioner and several other accused. The
filing of the Informations was duly approved by then Ombudsman Aniano A.
Desierto. The first twelve (12) Informations were for violation of Section 3(e) of
Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, docketed as Criminal Cases Nos. 25122 to 25133. All were similarly
[9]

worded, except for the names of the other accused, the dates of the
commission of the offense, and the property involved. Representative of the
said Informations is that filed in Criminal Case No. 25122, the inculpatory
portion of which reads:

That sometime on September 24, 1997, and prior, or subsequent thereto, in General
Santos City, Philippines, and within the jurisdiction of this Honorable Court, accused
JOSE RAMISCAL, JR., a high ranking public official being then the President, and
WILFREDO PABALAN, a low ranking public officer being the Project Director,
both of the AFP-RSBS, while in the performance of their official duties, taking
advantage of their official positions and committing the offense in relation to their
offices, conspiring together and confederating with NILO FLAVIANO and ALEX
GUAYBAR, both private individuals, did, there and then, willfully, unlawfully and
criminally execute and/or cause the execution of a falsified Deed of Sale covering
Lot-X-4, a real property located at General Santos City, by making it appear therein
that the purchase price of the said lot is only TWO MILLION NINE HUNDRED
NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS at P3,000.00 per square
meter, when in truth and in fact, as all the accused very well knew and, in fact, agreed,
that the same was sold for P10,500.00 per square meter or a total of TEN MILLION
FOUR HUNDRED EIGHTY-NINE THOUSAND FIVE HUNDRED
(P10,489,500.00) PESOS, and use the said falsified Deed of Sale as basis for payment
of capital gains and documentary stamp taxes relative to the sale of the subject lot in
the amount of only P299,700.00 and P89,910.00, respectively, when the capital gains,
and documentary stamp and other taxes should have been P524,475.00
and P157,342.50, respectively, thereby short-changing and causing undue injury to the
government through evident bad faith and manifest partiality in the total amount of
TWO HUNDRED NINETY-TWO THOUSAND TWO HUNDRED SEVEN and
50/100 PESOS (P292,207.50), more or less.

CONTRARY TO LAW. [10]

On the other hand, twelve (12) other separate Informations indicted the
accused for Falsification of Public Documents, defined and penalized under
paragraph 4, Article 171 of the Revised Penal Code, docketed therein as
Criminal Cases Nos. 25134 to 25145. Save with respect to the names of the
[11]

other accused, the dates of the commission of the felonies, and the property
involved in each case, the Informations were, likewise, similarly worded,
representative of which is that in Criminal Case No. 25134. The accusatory
portion reads:

That on or about September 24, 1997, and sometime prior, or subsequent thereto, in
General Santos City, Philippines, and within the jurisdiction of this Honorable Court,
accused JOSE RAMISCAL, JR., a high-ranking public official being then the
President, and WILFREDO PABALAN, a low-ranking public officer being the
Project Director, both of the AFP-RSBS, while in the performance of their duties,
taking advantage of their official positions and committing the offense in relation to
their offices, conspiring and confederating with each other and with accused NILO
FLAVIANO and JACK GUIWAN, both private individuals, acting with
unfaithfulness and with malicious intent, did, there and then, willfully, unlawfully and
criminally falsify a public document by executing and/or causing to be executed a
Deed of Sale for a 999-sq. m. property particularly identified as Lot-X-5 located at
General Santos City and stating therein a purchase price of only P3,000.00 per square
meter or a total of TWO MILLION NINE HUNDRED NINETY-SEVEN
THOUSAND (P2,997,000.00) PESOS when in truth and in fact, as all the accused
very well knew and, in fact, agreed, the purchase price of said lot is P10,500.00 per
square meter or a total of TEN MILLION FOUR HUNDRED EIGHTY-NINE
THOUSAND FIVE HUNDRED (P10,489,500.00) PESOS, thereby perverting the
truth.

CONTRARY TO LAW. [12]

On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss the

Informations and to Defer the Issuance of Warrant of Arrest, alleging want of
jurisdiction. He, likewise, filed an Urgent Manifestation and Motion to
[13]

Suspend Proceedings on February 16, 1999, because of the pendency of his

[14]
motion for reinvestigation with the Office of the Ombudsman. The Office of the
Special Prosecutor opposed the said motions. [15]

Meanwhile, pending resolution of the aforementioned motions, the law firm

of Albano & Associates filed a Notice of Appearance as private prosecutors
[16]

in all the aforementioned cases for the Association of Generals and Flag
Officers, Inc. (AGFOI) on March 9, 1999. The notice of appearance was
[17]

apparently made conformably to the letter-request of Retired Commodore

Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members
thereof.
In a Resolution dated April 5, 1999, the Sandiganbayan denied the
[18]

earlier motions filed by the petitioner for lack of merit. Consequently, a warrant
of arrest against him was issued. He posted a cash bail bond for his
[19]

provisional liberty.
[20]

On April 6, 1999, the petitioner opposed the appearance of the law firm of
Albano & Associates as private prosecutors, contending that the charges
brought against him were purely public crimes which did not involve damage
or injury to any private party; thus, no civil liability had arisen. He argued that
[21]

under Section 16 of the Rules of Criminal Procedure, an offended party may

be allowed to intervene through a special prosecutor only in those cases
where there is civil liability arising from the criminal offense charged. He [22]

maintained that if the prosecution were to be allowed to prove damages, the

prosecution would thereby be proving another crime, in violation of his
constitutional right to be informed of the nature of the charge against him.
In its comment, the law firm contended that its clients, Commodore Aparri
and Brig. Gen. Navarro, were members of the AGFOI and contributors of
AFP-RSBS. It alleged that as such members-contributors, they have been
disadvantaged or deprived of their lawful investments and residual interest at
the AFP-RSBS through the criminal acts of the petitioner and his cohorts. It
posited that its clients, not having waived the civil aspect of the cases
involved, have all the right to intervene pursuant to Section 16, Rule 110 of
the Rules of Court. Moreover, the law firm averred that its appearance was in
collaboration with the Office of the Ombudsman, and that their intervention in
any event, was subject to the direction and control of the Office of the Special
Prosecutor. [23]

Replying to the comment, the petitioner refuted the allegation of AGFOI

that he had civil interest in the criminal cases involved. He posited that AGFOI
was neither a member nor a beneficiary of the AFP-RSBS. Moreover,
considering that it was funded partly by the national government and
individual soldiers by way of salary deductions, the AGFOI never contributed a
single centavo to the funds of the AFP-RSBS. He further averred that AGFOI,
as an organization, has a distinct personality of its own, apart from the
individual members who compose it. Hence, it is of no moment if some
[24]

members of AGFOI are or have been members and beneficiaries of the AFP-
RSBS.
Meanwhile, on June 6, 1999, the petitioner filed a Motion for
Reinvestigation with the Sandiganbayan, mentioning therein his unresolved
[25]

motion for reconsideration with the Office of the Ombudsman. He prayed that
the proceeding be suspended and his arraignment deferred pending the
resolution of the reinvestigation.
The Sandiganbayan granted the motion in its Order dated June 11, 1999.
The fallo of the said resolution reads:

WHEREFORE, the prosecution is given 60 days from today within which to elevate
its evidence and to do whatever is appropriate on the Motion for Reconsideration
dated February 12, 1999 and supplemental motion thereof dated May 28, 1999 of
accused Jose Ramiscal, Jr. and to inform this Court within the said period as to its
findings and recommendations together with the action thereon of the Ombudsman.

As prayed for in open court by Pros. Monteroso, this authority from the Court for the
prosecution to evaluate its evidence and take such appropriate action as regards
accused Ramiscals subject motion shall also include the case regarding all the
accused.

SO ORDERED. [26]

In the meantime, in a Resolution dated June 9, 1999, the Sandiganbayan

[27]

made short shrift of the petitioners opposition and denied his plea for the
denial of the appearance of the law firm. In justifying its resolution, the
[28]

Sandiganbayan declared as follows:

Considering that the offended parties are members of the AFP-RSBS, as represented
by the two (2) flag officers, and their right may be affected by the action of the Court
resolving the criminal and civil aspects of the cases, there appears a strong legal
presumption that their appearance should not be disturbed. After all, their appearance
is subject to the direct supervision and control of the public prosecutor.
[29]

The petitioner moved for a reconsideration of the Sandiganbayans

[30]

Resolution of June 9, 1999, which was opposed by the prosecution. The

[31]

Sandiganbayan issued a Resolution denying the same on October 22, 1999.

[32]
 The petitioner filed the instant petition under Rule 45 of the Rules of Civil
Procedure, for the nullification of the June 9, 1999 and October 22, 1999
Resolutions of the graft court, and raised the following issues:
I

WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS

FOR VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND
ARTICLE 172, IN RELATION TO ARTICLE 171, OF THE REVISED PENAL
CODE GIVE RISE TO CIVIL LIABILITY IN FAVOR OF ANY PRIVATE PARTY.

II

WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES

ARE PRIVATE INJURED PARTIES ENTITLED TO INTERVENE AS THE
PRIVATE PROSECUTOR IN THE SUBJECT CASES. [33]

In support of his petition, the petitioner reiterated the same arguments he

put forth before the Sandiganbayan.
The Special Prosecutor, for his part, avers that the remedy resorted to by
the petitioner under Rule 45 of the Rules of Civil Procedure was improper
since the assailed Resolutions of the Sandiganbayan are interlocutory in
nature and not final; hence, the remedy of the petitioner was to file a petition
for certiorari and prohibition under Rule 65 of the Rules of Court. He also
argues that the petition is premature because the reinvestigation of the cases
had not yet been completed. On the merits of the petition, he posits that the
AGFOI is a member of the AFP-RSBS, and that its rights may be affected by
the outcome of the cases. He further alleged that the appearance of the
private prosecutor was subject to the direct supervision and control of the
public prosecutor.
The petitioner, however, asserts, by way of reply, that the assailed orders
of the Sandiganbayan are final orders; hence, his recourse under Rule 45 of
the Rules of Civil Procedure was proper.

The Ruling of the Court

The Assailed Resolutions

of the Sandiganbayan are
Interlocutory in Nature
 The word interlocutory refers to something intervening between the
commencement and the end of a suit which decides some point or matter but
is not a final decision of the whole controversy. The Court distinguished a final
order or resolution from an interlocutory one in Investments, Inc. v. Court of
Appeals as follows:
[34]

A final judgment or order is one that finally disposes of a case, leaving nothing more
to be done by the Court in respect thereto, e.g., an adjudication on the merits which,
on the basis of the evidence presented at the trial, declares categorically what the
rights and obligations of the parties are and which party is in the right; or a judgment
or order that dismisses an action on the ground, for instance, of res adjudicataor
prescription. Once rendered, the task of the Court is ended, as far as deciding the
controversy or determining the rights and liabilities of the litigants is concerned.
Nothing more remains to be done by the Court except to await the parties next move
(which, among others, may consist of the filing of a motion for new trial or
reconsideration, or the taking of an appeal) and ultimately, of course, to cause the
execution of the judgment once it becomes final or, to use the established and more
distinctive term, final and executory.[35]

Conversely, an order that does not finally disposes of the case, and does not end the
Courts task of adjudicating the parties contentions and determining their rights and
liabilities as regards each other, but obviously indicates that other things remain to be
done by the Court, is interlocutory, e.g., an order denying a motion to dismiss under
Rule 16 of the Rules, or granting a motion for extension of time to file a pleading, or
authorizing amendment thereof, or granting or denying applications for postponement,
or production or inspection of documents or things, etc. Unlike a final judgment or
order, which is appealable, as above pointed out, an interlocutory order may not be
questioned on appeal except only as part of an appeal that may eventually be taken
from the final judgment rendered in this case. [36]

The rule is founded on considerations of orderly procedure, to forestall

useless appeals and avoid undue inconvenience to the appealing party by
having to assail orders as they are promulgated by the court, when all such
orders may be contested in a single appeal. [37]

Under Section 1, Rule 45 of the Rules of Court, only final judgments,

orders or resolutions of the Court of Appeals or Sandiganbayan may be
assailed therein. The remedy is a mode of appeal on questions of law only. [38]

In the present case, the Sandiganbayan merely resolved to allow the

appearance of the law firm of Albano & Associates as private prosecutors, on
its finding that the AGFOI, represented by Commodore Aparri and Brig. Gen.
Navarro who were, likewise, investors/members of the AFP-RSBS, is the
offended party whose rights may be affected by the prosecution of the criminal
and civil aspects of the cases and the outcome thereof. Furthermore, the
private prosecutor is subject to the direct supervision and control of the public
prosecutor. The Sandiganbayan did not dispose of the cases on their merits,
more specifically, the guilt or innocence of the petitioner or the civil liabilities
attendant to the commission of the crimes charged. Assuming that the
Ombudsman would maintain the finding of probable cause against the
petitioner after the reinvestigation of the cases, and, thereafter, the
Sandiganbayan would sustain the finding of probable cause against the
petitioner and issue warrants for his arrest, the graft court would then have to
proceed to trial, receive the evidence of the parties and render judgment on
the basis thereof. The petitioner would then have the following options: (a) to
proceed to trial, and, if convicted, file a petition for review under Rule 45 of the
Rules of Court to this Court; or (b) to file a petition for certiorari, under Rule 65
of the Rules of Court, to nullify the resolutions of the Sandiganbayan on the
ground of grave abuse of discretion amounting to excess or lack of jurisdiction
in issuing the said resolutions and decision.
Nevertheless, in the interest of substantial justice, we shall treat the
petition as one filed under Rule 65 of the Rules of Court. Dismissal of appeal
purely on technical grounds is frowned upon where the policy of the courts is
to encourage hearings of appeal on their merits. The rules of procedure ought
not to be applied in a very rigid technical sense, as they are used only to help
secure, not override substantial justice. If a technical and rigid enforcement of
the rules is made, their aim would be defeated. Consequently, in the interest
of justice, the instant petition for review may be treated as a special civil action
on certiorari. As we held in Salinas v. NLRC, a petition which should have
[39] [40]

been brought under Rule 65 and not under Rule 45 of the Rules of Court, is
not an inflexible rule. The strict application of procedural technicalities should
not hinder the speedy disposition of the case on the merits. [41]

Although there is no allegation in the petition at bar that the

Sandiganbayan committed grave abuse of its discretion amounting to excess
or lack of jurisdiction, nonetheless, the petitioner made the following
averments: that the graft court arbitrarily declared the AGFOI to be the
offended party despite the plain language of the Informations and the nature
of the crimes charged; and that the graft court blatantly violated basic
procedural rules, thereby eschewing the speedy and orderly trial in the above
cases. He, likewise, averred that the Sandiganbayan had no authority to allow
the entry of a party, through a private prosecutor, which has no right to the
civil liabilities of the accused arising from the crimes charged, or where the
accused has no civil liabilities at all based on the nature of said crimes. The
petitioner also faulted the Sandiganbayan for rejecting his opposition thereto,
in gross violation of the Revised Rules of Criminal Procedure and the Revised
Penal Code. Indeed, such allegations are sufficient to qualify the petition as
one under Rule 65 of the Rules of Court. As we held in People v. Court of
Appeals: [42]

The public respondent acts without jurisdiction if it does not have the legal power to
determine the case; there is excess of jurisdiction where the respondent, being clothed
with the power to determine the case, oversteps its authority as determined by law.
There is grave abuse of discretion where the public respondent acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment as to be said to
be equivalent to lack of jurisdiction.
[43]

Besides, unless we resolve the present petition on its merits, other parties,
like the private respondents herein, may, likewise, enter their appearance as
offended parties and participate in criminal proceedings before the
Sandiganbayan.
The Appearance of
the Law Firm Albano
& Associates
The respondent law firm entered its appearance as private prosecutor for
AGFOI, purportedly upon the request of Commodore Aparri and Brig. Gen.
Navarro, quoted infra:

Atty. Antonio Albano

Practicing Lawyer
Albano-Irao Law Offices

Dear Atty. Albano:

We represent a number of Retired Generals and other Star Rank Officers who
rightfully claim to have been disadvantaged or deprived of our lawful investments and
residual interest at the Retirement Separation Benefit System, AFP because of alleged
plunder of the Systems Funds, Large Scale Estafa and Falsification of Public
Documents.

We are requesting that you appear in our behalf as private prosecutor of our case.

Thank you very much.

(Sgd.) COMMO. ISMAEL D. APARRI (RET)

 (Sgd.) BGEN. PEDRO I. NAVARRO (RET) [44]

As gleaned from the letter-request, the legal services of the respondent

law firm were not engaged by the AGFOI itself; it was Commodore Aparri and
Brig. Gen. Navarro who did so, for and in behalf of the other retired generals
and star rank officers claiming to have residual interests in or to be investors
of the AFP-RSBS, the vendee of the lots subject of the Informations against
the petitioner. Moreover, there is no showing in the records that the Board of
Directors of the AGFOI, authorized them to engage the services of the
respondent law firm to represent it as private prosecutor in the above cases.
Neither is there any resolution on record issued by the Board of Directors of
the AGFOI authorizing Commodore Aparri and Brig. Gen. Navarro to secure
the services of the respondent law firm to represent it as the private
prosecutor in said cases. If at all, the respondent law firm is the counsel of
Aparri and Navarro only.
The AGFOI and/or Commodore
Aparri and/or Brig. Gen.
Navarro Are Not the Offended
Parties in the Informations filed
Before the Sandiganbayan
The petitioner avers that the crimes charged are public offenses and, by
their very nature, do not give rise to criminal liabilities in favor of any private
party. He asserts that, as gleaned from the Informations in Criminal Cases
Nos. 25122 to 25133 for violation of Section 3(e) of Rep. Act No. 3019, the
offended party is the government because based on the deeds of sale
executed in favor of the AFP-RSBS, as vendee, it was deprived of capital
gains and the documentary stamp taxes. He contends that the Informations in
Criminal Cases Nos. 25134 to 25145, for falsification of public document
under paragraph 4, Article 171 of the Revised Penal Code, do not contain any
allegation that the AGFOI or any private party sustained any damage caused
by the said falsifications. The petitioner further argues that absent any civil
liability arising from the crimes charged in favor of AGFOI, the latter cannot be
considered the offended party entitled to participate in the proceedings before
the Sandiganbayan. According to the petitioner, this view conforms to Section
16, Rule 110 of the Revised Rules of Criminal Procedure, which reads:

SEC. 16. Intervention of the offended party in criminal action. Where the civil action
for recovery of civil liability is instituted in the criminal action pursuant to Rule 111,
the offended party may intervene by counsel in the prosecution of the offense.
 The petitioner posits that the AGFOI is not a member, beneficiary or
contributor of the AFP-RSBS, and that even if it were so, it would not sustain a
direct and material damage by an adverse outcome of the cases. Allowing the
AGFOI to intervene would open the floodgates to any person similarly situated
to intervene in the proceedings and, thus, frustrate the speedy, efficient and
inexpensive disposition of the cases.
In his Comment, the Special Prosecutor avers that the AGFOI is entitled to
intervene in the proceedings in the Sandiganbayan because it is a member of
the AFP-RSBS, whose rights may be affected by the outcome of the cases.
The AGFOI and the respondent law firm contend that the latter has a right
to intervene, considering that such intervention would enable the members of
AGFOI to assert their rights to information and access to the official records,
documents, and papers, a right granted by no less than paragraph 7, Article
IV of the 1987 Constitution. Furthermore, the funds of the AFP-RSBS are
impressed with public character because the government provided for its
initial funds, augmented from time to time by the salary contributions of the
incumbent AFP soldiers and officers.
We agree with the contention of the petitioner that the AGFOI, and even
Commodore Aparri and Brig. Gen. Navarro, are not the offended parties
envisaged in Section 16, Rule 110, in relation to Section 1, Rule 111 of the
Revised Rules of Criminal Procedure.
Under Section 5, Rule 110 of the Rules, all criminal actions covered by a
[45]

complaint or information shall be prosecuted under the direct supervision and

control of the public prosecutor. Thus, even if the felonies or delictual acts of
the accused result in damage or injury to another, the civil action for the
recovery of civil liability based on the said criminal acts is impliedly
instituted and the offended party has not waived the civil action, reserved the
[46]

right to institute it separately or instituted the civil action prior to the criminal
action, the prosecution of the action inclusive of the civil action remains under
the control and supervision of the public prosecutor. The prosecution of
[47]

offenses is a public function. Under Section 16, Rule 110 of the Rules of
[48]

Criminal Procedure, the offended party may intervene in the criminal action
personally or by counsel, who will act as private prosecutor for the protection
of his interests and in the interest of the speedy and inexpensive
administration of justice. A separate action for the purpose would only prove
to be costly, burdensome and time-consuming for both parties and further
delay the final disposition of the case. The multiplicity of suits must be
avoided. With the implied institution of the civil action in the criminal action,
[49]

the two actions are merged into one composite proceeding, with the criminal
action predominating the civil. The prime purpose of the criminal action is to
punish the offender in order to deter him and others from committing the same
or similar offense, to isolate him from society, reform and rehabilitate him or,
in general, to maintain social order.
On the other hand, the sole purpose of the civil action is for the resolution,
reparation or indemnification of the private offended party for the damage or
injury he sustained by reason of the delictual or felonious act of the
accused. Under Article 104 of the Revised Penal Code, the following are the
[50]

civil liabilities of the accused:

ART. 104. What is included in civil liability. The civil liability established in Articles
100, 101, 102 and 103 of this Code includes:

1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Thus, when the offended party, through counsel, has asserted his right to
intervene in the proceedings, it is error to consider his appearance merely as
a matter of tolerance. [51]

The offended party may be the State or any of its instrumentalities,

including local governments or government-owned or controlled corporations,
such as the AFP-RSBS, which, under substantive laws, are entitled to
restitution of their properties or funds, reparation, or indemnification. For
instance, in malversation of public funds or property under Article 217 of the [52]

Revised Penal Code, frauds under Article 213 of the Revised Penal Code,
[53]

and violations of the Forestry Code of the Philippines, P.D. No. 705, as
amended, to mention a few, the government is the offended party entitled to
the civil liabilities of the accused. For violations of Section 3(e) of Rep. Act No.
3019, any party, including the government, may be the offended party if such
[54]

party sustains undue injury caused by the delictual acts of the accused. In
such cases, the government is to be represented by the public prosecutor for
the recovery of the civil liability of the accused.
Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure,
the offended party may also be a private individual whose person, right,
house, liberty or property was actually or directly injured by the same
punishable act or omission of the accused, or that corporate entity which is
[55]

damaged or injured by the delictual acts complained of. Such party must be
one who has a legal right; a substantial interest in the subject matter of the
action as will entitle him to recourse under the substantive law, to recourse if
the evidence is sufficient or that he has the legal right to the demand and the
accused will be protected by the satisfaction of his civil liabilities. Such interest
must not be a mere expectancy, subordinate or inconsequential. The interest
of the party must be personal; and not one based on a desire to vindicate the
constitutional right of some third and unrelated party. [56]

Hence, even if the members of AGFOI may also be members or

beneficiaries of the AFP-RSBS, the respondent AGFOI does not have a legal
right to intervene in the criminal cases merely and solely to enforce and/or
protect the constitutional right of such members to have access to the records
of AFP-RSBS. Neither are such members entitled to intervene therein simply
because the funds of the AFP-RSBS are public or government funds. It must
be stressed that any interest of the members of the AFP-RSBS over its funds
or property is merely inchoate and incidental. Such funds belong to the AFP-
RSBS which has a juridical personality separate and independent of its
members/beneficiaries.
As gleaned from the Informations in Criminal Cases Nos. 25122 to 25133
for violation of Section 3(e) of Rep. Act No. 3019, the offended party is the
government, which was allegedly deprived by the petitioner and the other
accused of the capital gains and documentary stamp taxes, based on the
actual and correct purchase price of the property stated therein in favor of the
AFP-RSBS. The AGFOI was not involved whatsoever in the sales subject of
the crimes charged; neither was it prejudiced by the said transactions, nor is it
entitled to the civil liability of the petitioner for said cases. Thus, it is not the
offended party in the said cases.
We agree with the petitioner that the AGFOI is not even the offended party
in Criminal Cases Nos. 25134 to 25145 for falsification of public documents
under paragraph 4, Sec. 1, Article 171, of the Revised Penal Code. It bears
stressing that in the felony of falsification of public document, the existence of
any prejudice caused to third person or the intent to cause damage, at the
very least, becomes immaterial. The controlling consideration is the public
character of a document and the violation of the public faith and the
destruction of truth therein solemnly proclaimed. The offender does not, in any
way, have civil liability to a third person.
[57]

However, if, in a deed of sale, the real property covered thereby is

underpriced by a public officer and his co-conspirators to conceal the correct
amount of capital gains and documentary stamp taxes due on the sale
causing undue injury to the government, the offenders thereby commit two
crimes (a) falsification of public document defined in paragraph 4, Article 171
of the Revised Penal Code; and (b) violation of Section 3(e) of Rep. Act No.
3019, a special penal law. The offender incurs civil liability to the government
as the offended party for violation of Section 3(e) of Rep. Act No. 3019, but
not for falsification of public document under paragraph 4, Article 171 of the
Revised Penal Code.
On the other hand, if, under the deed of sale, the AFP-RSBS was made
liable for the payment of the capital gains and documentary stamp taxes and,
thereafter, gave the correct amount thereof to the petitioner to be paid to the
government, and the petitioner and his co-accused pocketed the difference
between the correct amount of taxes and the amount entrusted for payment,
then the AFP-RSBS may be considered the offended party entitled to
intervene in the above criminal cases, through the Government Corporate
Counsel. [58]

In fine, the AGFOI is not the offended party entitled to intervene in said
cases.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed Resolutions of the Sandiganbayan are REVERSED and SET ASIDE.
No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario,
JJ., concur.
C.1.b.b-2 people vs benipayo, 586 scra

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 154473 April 24, 2009

PEOPLE OF THE PHILIPPINES and PHOTOKINA MARKETING CORPORATION, Petitioners,

vs.
ALFREDO L. BENIPAYO, Respondent.

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

G.R. No. 155573 April 24, 2009

PHOTOKINA MARKETING CORPORATION, Petitioner,

vs.
ALFREDO L. BENIPAYO, Respondent.

DECISION

NACHURA, J.:

Before the Court are two consolidated petitions for review on certiorari filed under Rules 45 and 122
of the Rules of Court: (1) G.R. No. 154473 assailing the June 18, 20021 and the June 23,
20022 Orders of the Regional Trial Court (RTC) of Quezon City, Branch 102 in Criminal Case No. Q-
02-109407; and (2) G.R. No. 155573 challenging the June 25, 20023 and the September 18,
20024 Orders of the RTC of Quezon City, Branch 101 in Criminal Case No. Q-02-109406.

The petitions, while involving the same issues, rest on different factual settings, thus:

G.R. No. 154473

On January 31, 2002, respondent Alfredo L. Benipayo, then Chairman of the Commission on
Elections (COMELEC), delivered a speech in the "Forum on Electoral Problems: Roots and
Responses in the Philippines" held at the Balay Kalinaw, University of the Philippines-Diliman
Campus, Quezon City.5 The speech was subsequently published in the February 4 and 5, 2002
issues of the Manila Bulletin.6

Petitioner corporation, believing that it was the one alluded to by the respondent when he stated in
his speech that

Even worse, the Commission came right up to the brink of signing a 6.5 billion contract for a
registration solution that could have been bought for 350 million pesos, and an ID solution that isn’t
even a requirement for voting. But reason intervened and no contract was signed. Now, they are at it
again, trying to hoodwink us into contract that is so grossly disadvantageous to the government that
it offends common sense to say that it would be worth the 6.5 billion-peso price tag.7
filed, through its authorized representative, an Affidavit-Complaint8 for libel.

Arguing that he was an impeachable officer, respondent questioned the jurisdiction of the Office of
the City Prosecutor of Quezon City (OCP-QC).9 Despite the challenge, the City Prosecutor filed an
Information10 for libel against the respondent, docketed as Criminal Case No. Q-02-109407, with the
RTC of Quezon City, Branch 102.

Petitioner later filed a Motion for Inhibition and Consolidation,11 contending that Judge Jaime N.
Salazar of Branch 102 could not impartially preside over the case because his appointment to the
judiciary was made possible through the recommendation of respondent’s father-in-law. Petitioner
further moved that the case be ordered consolidated with the other libel case [Criminal Case No. Q-
02-103406, which is the subject of G.R. No. 155573] pending with Branch 101 of the RTC.

While the said motion remained unresolved, respondent, for his part, moved for the dismissal of the
case on the assertion that the trial court had no jurisdiction over his person for he was an
impeachable officer and thus, could not be criminally prosecuted before any court during his
incumbency; and that, assuming he can be criminally prosecuted, it was the Office of the
Ombudsman that should investigate him and the case should be filed with the Sandiganbayan.12

On June 18, 2002, the trial court issued the challenged Order13 dismissing Criminal Case No. Q-02-
109407 and considering as moot and academic petitioner’s motion to inhibit. While the RTC found
that respondent was no longer an impeachable officer because his appointment was not confirmed
by Congress, it ruled that the case had to be dismissed for lack of jurisdiction considering that the
alleged libel was committed by respondent in relation to his office—he delivered the speech in his
official capacity as COMELEC Chair. Accordingly, it was the Sandiganbayan that had jurisdiction
over the case to the exclusion of all other courts.

On motion for reconsideration, the trial court adhered to its ruling that it was not vested with
jurisdiction to hear the libel case.14

Aggrieved, petitioners timely filed before the Court, on pure questions of law, the instant Petition for
Review on Certiorari15 under Rule 122 in relation to Rule 45 of the Rules of Court raising the
following grounds:

I. THE TRIAL COURT SHOULD HAVE FIRST RESOLVED THE MOTION TO INHIBIT BEFORE
RESOLVING THE MOTION TO DISMISS;

II. THE TRIAL COURT ERRED IN RULING THAT THE CRIME OF LIBEL IN THIS CASE WAS
COMMITTED BY ACCUSED "IN RELATION TO HIS OFFICE;" AND

III. THE TRIAL COURT ERRED IN RULING THAT IT HAD NO JURISDICTION IN THIS CASE.16

G.R. No. 155573

On March 13, 2002, respondent, as COMELEC Chair, and COMELEC Commissioner Luzviminda
Tangcangco were guests of the talk show "Point Blank," hosted by Ces Drilon and televised
nationwide on the ANC-23 channel. The television show’s episode that day was entitled "COMELEC
Wars."17 In that episode, the following conversation transpired:

Drilon: Are you saying, Chairman, that COMELEC funds are being used for a "PR" campaign against
you? Is that what you are saying?
Benipayo: No, I think [it’s] not COMELEC funds, [it’s] Photokina funds. You know, admittedly,
according to [c]hargé d’[a]ffaires of the U.S. Embassy[,] in a letter sent to me in July of 2001, it is
what’s been [so] happening to the Photokina deal, they have already spent in excess of 2.4 [m]illion
U.S. [d]ollars. At that time[,] that’s about 120 [m]illion pesos and I said, what for[?] [T]hey wouldn’t
tell me, you see. Now you asked me, [who is] funding this? I think it’s pretty obvious.18

Petitioner considered respondent’s statement as defamatory, and, through its authorized

representative, filed a Complaint-Affidavit19 for libel. Respondent similarly questioned the jurisdiction
of the OCP-QC.20 The City Prosecutor, however, consequently instituted Criminal Case No. Q-02-
109406 by filing the corresponding Information21 with the RTC of Quezon City, Branch 101.

Respondent also moved for the dismissal of the information raising similar arguments that the court
had no jurisdiction over his person, he being an impeachable officer; and that, even if criminal
prosecution were possible, jurisdiction rested with the Sandiganbayan.22

On June 25, 2002, the trial court issued the assailed Order23 dismissing Criminal Case No. Q-02-
109406 for lack of jurisdiction over the person of the respondent. The RTC, in the further assailed
September 18, 2002 Order,24 denied petitioner’s Motion for Reconsideration.25

Displeased with the rulings of the trial court, petitioners seasonably filed before this Court, on pure
questions of law, another Petition for Review on Certiorari26 under Rule 122 in relation to Rule 45 of
the Rules of Court raising the following grounds:

I. THE TRIAL COURT ERRED IN RULING THAT THE CRIME OF LIBEL IN THIS CASE WAS
COMMITTED BY RESPONDENT "IN RELATION TO HIS OFFICE"; AND

II. IN THE ABSENCE OF ANY ALLEGATION IN THE INFORMATION THAT THE CRIME OF LIBEL
WAS COMMITTED BY RESPONDENT IN RELATION TO HIS OFFICE, THE TRIAL COURT
ERRED IN RULING THAT IT HAD NO JURISDICTION OVER THE CASE BELOW.

III. EVEN ON THE ASSUMPTION THAT THE SANDIGANBAYAN HAS JURISDICTION OVER THE
CASE, THE TRIAL COURT SHOULD HAVE ENDORSED THE CASE TO THE SANDIGANBAYAN
INSTEAD OF DISMISSING IT OUTRIGHT.27

Considering that the two petitions, as aforesaid, involve the same issues and the same parties, the
Court, upon the recommendation of the Clerk of Court,28 consolidated the cases.29

The core issue for the resolution of the Court in these twin cases is whether the RTC has jurisdiction
over libel cases to the exclusion of all other courts.

The Ruling of the Court

The Court observes that the parties have argued at length in their pleadings on the issue of whether
the alleged criminal acts of respondent are committed in relation to his office. They are of the
conviction that the resolution of the said question will ultimately determine which court—the RTC or
the Sandiganbayan—has jurisdiction over the criminal cases filed. The Court, however, notes that
both parties are working on a wrong premise. The foremost concern, which the parties, and even the
trial court, failed to identify, is whether, under our current laws, jurisdiction over libel cases, or written
defamations to be more specific, is shared by the RTC with the Sandiganbayan. Indeed, if the said
courts do not have concurrent jurisdiction to try the offense, it would be pointless to still determine
whether the crime is committed in relation to office.
Uniformly applied is the familiar rule that the jurisdiction of the court to hear and decide a case is
conferred by the law in force at the time of the institution of the action, unless a latter statute
provides for a retroactive application thereof.30 Article 360 of the Revised Penal Code (RPC),31 as
amended by Republic Act No. 4363,32 is explicit on which court has jurisdiction to try cases of written
defamations, thus:

The criminal and civil action for damages in cases of written defamations as provided for in this
chapter, shall be filed simultaneously or separately with the court of first instance [now, the Regional
Trial Court] of the province or city where the libelous article is printed and first published or where
any of the offended parties actually resides at the time of the commission of the offense
xxx.33 [Underscoring and italics ours.]1avvphi 1.zw+

More than three decades ago, the Court, in Jalandoni v. Endaya,34 acknowledged the unmistakable
import of the said provision:

There is no need to make mention again that it is a court of first instance [now, the Regional Trial
Court] that is specifically designated to try a libel case. Its language is categorical; its meaning is free
from doubt. This is one of those statutory provisions that leave no room for interpretation. All that is
required is application. What the law ordains must then be followed.35

This exclusive and original jurisdiction of the RTC over written defamations is echoed in Bocobo v.
Estanislao,36where the Court further declared that jurisdiction remains with the trial court even if the
libelous act is committed "by similar means,"37 and despite the fact that the phrase "by similar
means" is not repeated in the latter portion of Article 360.38 In these cases, and in those that
followed, the Court had been unwavering in its pronouncement that the expanded jurisdiction of the
municipal trial courts cannot be exercised over libel cases. Thus, in Manzano v. Hon. Valera,39 we
explained at length that:

The applicable law is still Article 360 of the Revised Penal Code, which categorically provides that
jurisdiction over libel cases [is] lodged with the Courts of First Instance (now Regional Trial Courts).

This Court already had the opportunity to rule on the matter in G.R. No. 123263, People vs. MTC of
Quezon City, Branch 32 and Isah v. Red wherein a similar question of jurisdiction over libel was
raised. In that case, the MTC judge opined that it was the first level courts which had jurisdiction due
to the enactment of RA 7691. Upon elevation of the matter to us, respondent judge’s orders were
nullified for lack of jurisdiction, as follows:

"WHEREFORE, the petition is granted: the respondent Court’s Orders dated August 14, 1995,
September 7, 1995, and October 18, 1995 are declared null and void for having been issued without
jurisdiction; and said Court is enjoined from further taking cognizance of and proceeding with
Criminal Case No. 43-00548, which it is commanded to remand to the Executive Judge of the
Regional Trial Court of Quezon City for proper disposition."

Another case involving the same question was cited as resolving the matter:

"Anent the question of jurisdiction, we ** find no reversible error committed by public respondent
Court of Appeals in denying petitioner’s motion to dismiss for lack of jurisdiction. The contention **
that R.A. 7691 divested the Regional Trial Courts of jurisdiction to try libel cases cannot be
sustained. While libel is punishable by imprisonment of six months and one day to four years and
two months (Art. 360, Revised Penal Code) which imposable penalty is lodged within the Municipal
Trial Court’s jurisdiction under R.A. No. 7691 (Sec. 32 [2]), said law however, excludes therefrom **
cases falling within the exclusive original jurisdiction of the Regional Trial Courts **. The Court
in Bocobo vs. Estanislao, 72 SCRA 520 and Jalandoni vs. Endaya, 55 SCRA 261, correctly cited by
the Court of Appeals, has laid down the rule that Regional Trial courts have the exclusive jurisdiction
over libel cases, hence, the expanded jurisdiction conferred by R.A. 7691 to inferior courts cannot be
applied to libel cases."

Conformably with [these] rulings, we now hold that public respondent committed an error in ordering
that the criminal case for libel be tried by the MTC of Bangued.

For, although RA 7691 was enacted to decongest the clogged dockets of the Regional Trail Courts
by expanding the jurisdiction of first level courts, said law is of a general character. Even if it is a
later enactment, it does not alter the provision of Article 360 of the RPC, a law of a special nature.
"Laws vesting jurisdiction exclusively with a particular court, are special in character, and should
prevail over the Judiciary Act defining the jurisdiction of other courts (such as the Court of First
Instance) which is a general law." A later enactment like RA 7691 does not automatically override an
existing law, because it is a well-settled principle of construction that, in case of conflict between a
general law and a special law, the latter must prevail regardless of the dates of their enactment.
Jurisdiction conferred by a special law on the RTC must therefore prevail over that granted by a
general law on the MTC.

Moreover, from the provisions of R.A. 7691, there seems to be no manifest intent to repeal or alter
the jurisdiction in libel cases. If there was such intent, then the amending law should have clearly so
indicated because implied repeals are not favored. As much as possible, effect must be given to all
enactments of the legislature. A special law cannot be repealed, amended or altered by a
subsequent general law by mere implication. Furthermore, for an implied repeal, a pre-condition
must be found, that is, a substantial conflict should exist between the new and prior laws. Absent an
express repeal, a subsequent law cannot be construed as repealing a prior one unless an
irreconcilable inconsistency or repugnancy exists in the terms of the new and old laws. The two
laws, in brief, must be absolutely incompatible. In the law which broadened the jurisdiction of the first
level courts, there is no absolute prohibition barring Regional Trial Courts from taking cognizance of
certain cases over which they have been priorly granted special and exclusive jurisdiction. Such
grant of the RTC (previously CFI) was categorically contained in the first sentence of the amended
Sec. 32 of B.P. 129. The inconsistency referred to in Section 6 of RA 7691, therefore, does not apply
to cases of criminal libel.

Lastly, in Administrative Order No. 104-96 issued 21 October 1996, this Court delineated the proper
jurisdiction over libel cases, hence settled the matter with finality:

"RE: DESIGNATION OF SPECIAL COURTS FOR KIDNAPPING, ROBBERY, CARNAPPING,

DANGEROUS DRUGS CASES AND OTHER HEINOUS CRIMES; INTELLECTUAL PROPERTY
RIGHTS VIOLATIONS AND JURISDICTION IN LIBEL CASES.

xxxx

"LIBEL CASES SHALL BE TRIED BY THE REGIONAL TRIAL COURTS HAVING JURISDICTION
OVER THEM TO THE EXCLUSION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS." (Underscoring supplied)40

As we have constantly held in Jalandoni, Bocobo, People v. Metropolitan Trial Court of Quezon City,
Br. 32,41Manzano, and analogous cases, we must, in the same way, declare herein that the law, as it
still stands at present, dictates that criminal and civil actions for damages in cases of written
defamations shall be filed simultaneously or separately with the RTC to the exclusion of all other
courts. A subsequent enactment of a law defining the jurisdiction of other courts cannot simply
override, in the absence of an express repeal or modification, the specific provision in the RPC
vesting in the RTC, as aforesaid, jurisdiction over defamations in writing or by similar means.42The
grant to the Sandiganbayan43 of jurisdiction over offenses committed in relation to (public) office,
similar to the expansion of the jurisdiction of the MTCs, did not divest the RTC of its exclusive and
original jurisdiction to try written defamation cases regardless of whether the offense is committed in
relation to office. The broad and general phraseology of Section 4, Presidential Decree No. 1606, as
amended by Republic Act No. 8249,44 cannot be construed to have impliedly repealed, or even
simply modified, such exclusive and original jurisdiction of the RTC.45

Since jurisdiction over written defamations exclusively rests in the RTC without qualification, it is
unnecessary and futile for the parties to argue on whether the crime is committed in relation to office.
Thus, the conclusion reached by the trial court that the respondent committed the alleged libelous
acts in relation to his office as former COMELEC chair, and deprives it of jurisdiction to try the case,
is, following the above disquisition, gross error. This Court, therefore, orders the reinstatement of
Criminal Cases Nos. Q-02-109406 and Q-02-109407 and their remand to the respective Regional
Trial Courts for further proceedings. Having said that, the Court finds unnecessary any further
discussion of the other issues raised in the petitions.

WHEREFORE, premises considered, the consolidated petitions for review on certiorari are
GRANTED. Criminal Cases Nos. Q-02-109406 and Q-02-109407 are REINSTATED and
REMANDED to the Regional Trial Court of Quezon City for further proceedings.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

(On official leave)

CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING*
Associate Justice
Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

 Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice
C.1.C lacson vs executive secretary digest

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 murder[2] 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 informations[5] before the Sandiganbayan, wherein petitioner was charged only as
an accessory, together with Romeo Acop and Francisco Zubia, Jr. and others. One of the
accused[6] 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.
Thereafter, in a Resolution[8] 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.
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. 2299[10] and No. 1094[11] (sponsored by Representatives Edcel C. Lagman and Neptali M.
Gonzales II, respectively), as well as Senate Bill No. 844[12] (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. 8249[13]. 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.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution[14] denying
the motion for reconsideration of the Special Prosecutor, ruling that it stands pat in its resolution
dated May 8, 1996.
On the same day,[15] the Sandiganbayan issued an ADDENDUM to its March 5, 1997
Resolution, the pertinent portion of which reads:

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.

xxxxxxxxx

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 factolegislation
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 ex-post 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-in-intervention be dismissed.
This Court then issued a Resolution[19] 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. 1486[21] 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 government-owned 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.

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.

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.

x x x x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 8249 states:

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)

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

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 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:

(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 high
rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(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 government-owned 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 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.

xxxxxxxxx

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.

x x x 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 Superintendent[28] 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 employee[32] 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 law[33] because its enactment was particularly directed only to
the Kuratong Balelengcases 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 Sandiganbayan[38] 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 law[41] 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 times[50] 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
title[57] 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 informations[71] 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, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
C.1.C sanchez vs demetriou 227 scra

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, petitioner,

vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial
Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as
Secretary of Justice), JOVENCITO R. ZUÑO, LEONARDO C. GUIYAB, CARLOS L. DE LEON,
RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six
respondents in their official capacities as members of the State Prosecutor's
Office), respondents.

Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.

The Solicitor General for respondents.

CRUZ, J.:

There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of
Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already
been rendered by many outraged persons who would immediately impose on him an angry
sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed innocent
as long as the contrary has not been proved. Like any other person accused of an offense, he is
entitled to the full and vigilant protection of the Bill of Rights.

Sanchez has brought this petition to challenge the order of the respondent judge denying his motion
to quash the informations for rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment
from this Court.

The pertinent facts are as follows:

On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate
charges against several persons, including the petitioner, in connection with the rape-slay of Mary
Eileen Sarmenta and the killing of Allan Gomez.

Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a
preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was
represented by his counsel, Atty. Marciano Brion, Jr.

On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting
him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on
Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp.

At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III
Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay
of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to
the Department of Justice in Manila.

The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador
Panelo as his counsel.

After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August
13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in
connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to
Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp
Crame, where he remains confined.

On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba,
Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito
Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen
Sarmenta.

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest
of all the accused, including the petitioner, in connection with the said crime.

The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the
said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in
Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the
accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro
Manila, where they were raffled to respondent Judge Harriet Demetriou.

On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez
as an aggravating circumstance.

On that same date, the petitioner filed a motion to quash the informations substantially on the
grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent
judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.

The petitioner argues that the seven informations filed against him should be quashed because: 1)
he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman
had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has
therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising
from the death of only two persons; 5) the informations are discriminatory because they do not
include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the
offense only by the Sandiganbayan.

The respondents submitted a Comment on the petition, to which we required a Reply from the
petitioner within a non-extendible period of five days.1 The Reply was filed five days late. 2 The Court
may consider his non-compliance an implied admission of the respondents' arguments or a loss of
interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall
disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments
before us.

The Preliminary Investigation.

The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he
was not accorded the right to present counter-affidavits.

During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano
Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus:

Atty. Brion, Jr.:

[W]e manifest that after reviewing them there is nothing to rebut or countermand all
these statements as far as Mayor Sanchez is concerned, We are not going to submit
any counter-affidavit.

ACSP Zuño to Atty. Brion:

xxx xxx xxx

Q. So far, there are no other statements.

A. If there is none then, we will not submit any counter-affidavit

because we believe there is nothing to rebut or countermand with all
these statements.

Q. So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come
up soon. 3

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuño, told Atty. Brion that
he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed.

During the hearing on August 1'3, 1993, respondent Zuño furnished the petitioner's counsel, this
time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and
told him he could submit counter-affidavits on or before August 27, 1993. The following exchange
ensued:

ACSP Zuño:
 For the record, we are furnishing to you the sworn statement of
witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles.

Do I understand from you that you are again waiving the submission
of counter-affidavit?

Atty. Panelo:

Yes.

ACSP Zuño:

So, insofar as the respondent, Mayor Antonio Sanchez is concerned,

this case is submitted for resolution. 4

On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel,
Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished
with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their
supplemental affidavits dated August 15, 1993. Moreover, the above-quoted excerpt shows that the
petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo.

The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel.
During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf.
It was only in his tardy Reply that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be
subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall
base his resolution on the evidence presented by the complainant.

Just as the accused may renounce the right to be present at the preliminary investigation5, so may
he waive the right to present counter-affidavits or any other evidence in his defense.

At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of
the information or otherwise render the same defective and neither does it affect the jurisdiction of
the court over the case or constitute a ground for quashing the information.6

If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the
accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in
abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a
step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by
the Department of Justice are null and void because it had no jurisdiction over the case. His claim is
that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all
cases involving public officers like him, as the municipal mayor of Calauan, Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate
and prosecute, any illegal act or omission of any public official. However, as we held only two years
ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a
shared or concurrent authority in. respect of the offense charged."

Petitioners finally assert that the information and amended information filed in this
case needed the approval of the Ombudsman. It is not disputed that the information
and amended information here did not have the approval of the Ombudsman.
However, we do not believe that such approval was necessary at all. In Deloso v.
Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has authority
to investigate charges of illegal or omissions on the part of any public official, i.e., any
crime imputed to a public official. It must, however, be pointed out that the authority
of the Ombudsman to investigate "any [illegal] act or omission of any public official"
(191 SCRA at 550) is not an exclusiveauthority but rather a shared or concurrent
authority in respect of the offense here charged, i.e., the crime of sedition. Thus, the
non-involvement of the office of the Ombudsman in the present case does not have
any adverse legal consequence upon the authority the panel of prosecutors to file
and prosecute the information or amended information.

In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in
ill-gotten wealth cases,11 may conduct the investigation,

The Arrest

Was petitioner Sanchez arrested on August 13, 1993?

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into
custody in order that he may be bound to answer for the commission of an offense. Under Section 2
of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest.

Application of actual force, manual touching of the body, physical restraint or a formal declaration of
arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest
the other and an intent onthe part of the other to submit, under the belief and impression that
submission is necessary. 12

The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation
issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation.

In Babst v. National Intelligence Board 13 this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing
and answer some questions, which the person invited may heed or refuse at his
pleasure, is not illegal or constitutionally objectionable. Under certain circumstances,
however, such an invitation can easily assume a different appearance. Thus, where
the invitation comes from a powerful group composed predominantly of ranking
military officers issued at a time when the country has just emerged from martial rule
and when the suspension of the privilege of the writ of habeas corpus has not
entirely been lifted, and the designated interrogation site is a military camp, the same
can be easily taken, not as a strictly voluntary invitation which it purports to be, but as
 an authoritative command which one can only defy at his peril. . . . (Emphasis
supplied)

In the case at bar, the invitation came from a high-ranking military official and the investigation of
Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a
command or an order of arrest that the petitioner could hardly he expected to defy. In fact,
apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers
only) with the officers who had come to fetch him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation"
are applicable even to a person not formally arrested but merely "invited" for questioning.

It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status"
after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen
Sarmenta. Respondent Zuño himself acknowledged during the August 13, 1993 hearing that, on the
basis of the sworn statements of the two state witnesses, petitioner had been "arrested."

We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of
Court, providing as follows:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escapes from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

It is not denied that the arresting officers were not present when the petitioner allegedly participated
in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any
personal knowledge that the petitioner was responsible therefor because the basis of the arrest was
the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta
allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it
cannot be said that the offense had "in fact just been committed" when the petitioner was arrested.

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional
Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of
arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-
slay cases. It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully
acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the information, but only on that
ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to
have waived that objection and to have submitted his person to the jurisdiction of that court.14
The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases
Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant of
arrest for the rape-slay cases, this first warrant served as the initial justification for his detention.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect. * Applicable by analogy to the
case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec, 4. When writ is not allowed or discharge authorized. — If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall, anything in this rule
be held to authorize the discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering imprisonment under lawful
judgment.

In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by
virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:

The, case has, indeed, become moot and academic inasmuch as the new warrant of
arrest complies with the requirements of the Constitution and the Rules of Court
regarding the particular description of the person to be arrested. While the first
warrant was unquestionably void, being a general warrant, release of the petitioner
for that reason will be a futile act as it will be followed by her immediate re-arrest
pursuant to the new and valid warrant, returning her to the same prison she will just
have left. This Court will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18

The Informations

The petitioner submits that the seven informations charging seven separate homicides are absurd
because the two victims in these cases could not have died seven times.

This argument was correctly refuted by the Solicitor General in this wise:

Thus, where there are two or more offenders who commit rape, the homicide
committed on the occasion or by reason of each rape, must be deemed as a
constituent of the special complex crime of rape with homicide. Therefore, there will
be as many crimes of rape with homicide as there are rapes committed.

In effect, the presence of homicide qualifies the crime of rape, thereby raising its
penalty to the highest degree. Thus, homicide committed on the occasion or by
reason of rape, loses its character as an independent offense, but assumes a new
character, and functions like a qualifying circumstance. However,by fiction of law, it
 merged with rape to constitute an constituent element of a special complex crime of
rape with homicide with a specific penalty which is in the highest degree, i.e. death
(reduced to reclusion perpetua with the suspension of the application of the death
penalty by the Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must charge but one
offense, except only in those cases in which existing laws prescribe a simple
punishment for various offenses.

Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the
Revised Penal Code.

The petitioner and his six co-accused are not charged with only one rape committed by him in
conspiracy with the other six. Each one of the seven accused is charged with having himself raped
Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the
allegation of the prosecution is that the girl was raped seven times, with each of the seven accused
taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all
seven of them decided to kill and thus silence Sarmenta.

Every one of the seven accused is being charged separately for actually raping Sarmenta and later
killing her instead of merely assisting the petitioner in raping and then slaying her. The separate
informations filed against each of them allege that each of the seven successive rapes is complexed
by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven
attackers. The separate rapes were committed in succession by the seven accused, culminating in
the slaying of Sarmenta.

It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven
times, but the informations do not make such a suggestion. It is the petitioner who does so and is
thus hoist by his own petard.

The Alleged Discrimination

The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza
and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear to be
guilty, he nevertheless cannot be compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of
discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the
petitioner of a grave abuse of such discretion. 20

The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special
cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to support at least a prima
facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial
decision to prosecute him.

The possible exception is where there is an unmistakable showing of a grave abuse of discretion
that will justify judicial intrusion into the precincts of the executive. But in such a case the proper
remedy to call for such exception is a petition for mandamus, not certiorari or prohibition.22 Moreover,
before resorting to this relief, the party seeking the inclusion of another person as a co-accused in
the same case must first avail itself of other adequate remedies such as the filing of a motion for
such inclusion.23

At any rate, it is a preposterous contention that because no charges have been filed against Alqueza
and Lavadia, the charges against the petitioner and his co-accused should also be dropped.

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were incumbent public officials or
employees at the time of the alleged commission of the crimes, the cases against them should come
under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was
withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned.

Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

a) Exclusive original jurisdiction in all cases involving:

(1) 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 of the Revised Penal Code:

(2) Other offenses or felonies committed by public officers and

employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00. . . . (Emphasis supplied)

The crime of rape with homicide with which the petitioner stands charged obviously does not fall
under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph
(2) because it is not an offense committed in relation to the office of the petitioner.

In Montilla v, Hilario,24 this Court described the "offense committed in relation to the office" as follows:

[T]he relation between the crime and the office contemplated by the Constitution is,
in our opinion, direct and not accidental. To fall into the intent of the Constitution, the
relation has to be such that, in the legal sense, the offense cannot exist without the
office. In other words, the office must be a constituent element of the crime as
defined in the statute, such as, for instance, the crimes defined and punished in
Chapter Two to Six, Title Seven, of the Revised Penal Code.

Public office is not of the essence of murder. The taking of human life is either
murder or homicide whether done by a private citizen or public servant, and the
penalty is the same except when the perpetrator. being a public functionary took
advantage of his office, as alleged in this case, in which event the penalty is
increased.
 But the use or abuse of office does not adhere to the crime as an element; and even
as an aggravating circumstance, its materiality arises not from the allegations but on
the proof, not from the fact that the criminals are public officials but from the manner
of the commission of the crime

There is no direct relation between the commission of the crime of rape with homicide and the
petitioner's office as municipal mayor because public office is not an essential element of the crime
charged. The offense can stand independently of the office. Moreover, it is not even alleged in the
information that the commission of the crime charged was intimately connected with the
performance of the petitioner's official functions to make it fall under the exception laid down
in People v. Montejo. 25

In that case, a city mayor and several detectives were charged with murder for the death of a
suspect as a result of a "third degree" investigation held at a police substation. The appearance of a
senator as their counsel was questioned by the prosecution on the ground that he was inhibited by
the Constitution from representing them because they were accused of an offense committed in
relation to their office. The Court agreed. It held that even if their position was not an essential
ingredient of the offense, there was nevertheless an intimate connection between the office and the
offense, as alleged in the information, that brought it within the definition of an offense "committed in
relation to the public office."

As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is not an element of
the crime of murder in abstract, as committed by the main respondents herein,
according to the amended information, the offense therein charged is intimately
connected with their respective offices and was perpetrated while they were in the
performance, though improper or irregular, of their official functions. Indeed they had
no personal motive to commit the crime and they would not have committed it had
they not held their aforesaid offices. The co-defendants of respondent Leroy S.
Brown, obeyed his instructions because he was their superior officer, as Mayor of
Basilan City. (Emphasis supplied).

We have read the informations in the case at bar and find no allegation therein that the crime of rape
with homicide imputed to the petitioner was connected with the discharge of his functions as
municipal mayor or that there is an "intimate connection" between the offense and his office. It
follows that the said crime, being an ordinary offense, is triable by the regular courts and not the
Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts
and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the
respondent judge, who has started the trial of the criminal cases against the petitioner and his co-
accused, may proceed therewith without further hindrance.

It remains to stress that the decision we make today is not a decision on the merits of the criminal
cases being tried below. These will have to be decided by the respondent judge in accordance with
the evidence that is still being received. At this time, there is yet no basis for judgment, only
uninformed conjecture. The Court will caution against such irrelevant public speculations as they can
be based only on imperfect knowledge if not officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the
trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to
decide them with deliberate dispatch.

SO ORDERED.

Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug,
JJ., concur.

Narvasa, C.J., took no part.

Bellosillo, J., is on leave.

C.1.C hannah eunice serana vs sandiganbayan

THIRD DIVISION

HANNAH EUNICE D. SERANA, G.R. No. 162059

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.

SANDIGANBAYAN and Promulgated:

PEOPLE OF THE PHILIPPINES,
Respondents. January 22, 2008
x--------------------------------------------------x
DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholar** accused, along with her
brother, of swindling government funds?

MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang

kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan?

The jurisdictional question is posed in this petition for certiorari assailing

the Resolutions[1] of the Sandiganbayan, Fifth Division, denying petitioners motion
to quash the information and her motion for reconsideration.
 The Antecedents

Petitioner Hannah Eunice D. Serana was a senior student of the University of the
Philippines-Cebu. A student of a state university is known as a government
scholar. She was appointed by then President Joseph Estrada on December 21,
1999 as a student regent of UP, to serve a one-year term starting January 1,
2000 and ending on December 31, 2000.

In the early part of 2000, petitioner discussed with President Estrada the
renovation of Vinzons Hall Annex in UP Diliman.[2] On September 4, 2000,
petitioner, with her siblings and relatives, registered with the Securities and
Exchange Commission the Office of the Student Regent Foundation, Inc.
(OSRFI).[3]

One of the projects of the OSRFI was the renovation of the Vinzons Hall
Annex.[4] President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the
OSRFI as financial assistance for the proposed renovation. The source of the
funds, according to the information, was the Office of the President.

The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding

student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary
General of the KASAMA sa U.P., a system-wide alliance of student councils
within the state university, consequently filed a complaint for Malversation of
Public Funds and Property with the Office of the Ombudsman.[6]

On July 3, 2003, the Ombudsman, after due investigation, found probable

cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as
Criminal Case No. 27819 of the Sandiganbayan.[7] The Information reads:

The undersigned Special Prosecution Officer III, Office of the

Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA
and JADE IAN D. SERANA of the crime of Estafa, defined and
penalized under Paragraph 2(a), Article 315 of the Revised Penal Code,
as amended committed as follows:
 That on October, 24, 2000, or sometime prior or subsequent
thereto, in Quezon City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused, HANNAH
EUNICE D. SERANA, a high-ranking public officer, being then the
Student Regent of the University of the Philippines, Diliman, Quezon
City, while in the performance of her official functions, committing the
offense in relation to her office and taking advantage of her position,
with intent to gain, conspiring with her brother, JADE IAN D.
SERANA, a private individual, did then and there wilfully, unlawfully
and feloniously defraud the government by falsely and fraudulently
representing to former President Joseph Ejercito Estrada that the
renovation of the Vinzons Hall of the University of the Philippines will
be renovated and renamed as President Joseph Ejercito Estrada Student
Hall, and for which purpose accused HANNAH EUNICE D. SERANA
requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00),
Philippine Currency, from the Office of the President, and the latter
relying and believing on said false pretenses and misrepresentation gave
and delivered to said accused Land Bank Check No. 91353 dated
October 24, 2000 in the amount of FIFTEEN MILLION PESOS
(P15,000,000.00), which check was subsequently encashed by accused
Jade Ian D. Serana on October 25, 2000 and misappropriated for their
personal use and benefit, and despite repeated demands made upon the
accused for them to return aforesaid amount, the said accused failed and
refused to do so to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the

Sandiganbayan does not have any jurisdiction over the offense charged or over her
person, in her capacity as UP student regent.

Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A.
No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has
jurisdiction.[8]It has no jurisdiction over the crime of estafa.[9] It only has
jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes
Committed by Public Officers), Book II of the Revised Penal Code
(RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book
II of the RPC is not within the Sandiganbayans jurisdiction.
 She also argued that it was President Estrada, not the government, that was
duped. Even assuming that she received the P15,000,000.00, that amount came
from Estrada, not from the coffers of the government.[10]

Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her
person. As a student regent, she was not a public officer since she merely
represented her peers, in contrast to the other regents who held their positions in
an ex officio capacity. She added that she was a simple student and did not receive
any salary as a student regent.

She further contended that she had no power or authority to receive monies or
funds. Such power was vested with the Board of Regents (BOR) as a whole. Since
it was not alleged in the information that it was among her functions or duties to
receive funds, or that the crime was committed in connection with her official
functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case
of Soller v. Sandiganbayan.[11]

The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of

the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains
the catch-all phrase in relation to office, thus, the Sandiganbayan has jurisdiction
over the charges against petitioner. In the same breath, the prosecution countered
that the source of the money is a matter of defense. It should be threshed out during
a full-blown trial.[13]

According to the Ombudsman, petitioner, despite her protestations, was a public

officer. As a member of the BOR, she had the general powers of administration
and exercised the corporate powers of UP. Based on Mechems definition of a
public office, petitioners stance that she was not compensated, hence, not a public
officer, is erroneous. Compensation is not an essential part of public
office. Parenthetically, compensation has been interpreted to include
allowances. By this definition, petitioner was compensated.[14]

Sandiganbayan Disposition
In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners
motion for lack of merit.[15] It ratiocinated:

The focal point in controversy is the jurisdiction of the Sandiganbayan

over this case.
It is extremely erroneous to hold that only criminal offenses covered by
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are
within the jurisdiction of this Court. As correctly pointed out by the
prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan
also has jurisdiction over other offenses committed by public officials
and employees in relation to their office. From this provision, there is no
single doubt that this Court has jurisdiction over the offense
of estafa committed by a public official in relation to his office.
Accused-movants claim that being merely a member in representation of
the student body, she was never a public officer since she never received
any compensation nor does she fall under Salary Grade 27, is of no
moment, in view of the express provision of Section 4 of Republic Act
No. 8249 which provides:

Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:

(A) x x x

(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:

xxxx

(g) Presidents, directors or trustees, or managers of government-owned

or controlled corporations, state universities or educational institutions
or foundations. (Italics supplied)

It is very clear from the aforequoted provision that the Sandiganbayan

has original exclusive jurisdiction over all offenses involving the
officials enumerated in subsection (g), irrespective of their salary
grades, because the primordial consideration in the inclusion of these
officials is the nature of their responsibilities and functions.
 Is accused-movant included in the contemplated provision of law?

A meticulous review of the existing Charter of the University of the

Philippines reveals that the Board of Regents, to which accused-movant
belongs, exclusively exercises the general powers of administration and
corporate powers in the university, such as: 1) To receive and
appropriate to the ends specified by law such sums as may be provided
by law for the support of the university; 2) To prescribe rules for its own
government and to enact for the government of the university such
general ordinances and regulations, not contrary to law, as are consistent
with the purposes of the university; and 3) To appoint, on
recommendation of the President of the University, professors,
instructors, lecturers and other employees of the University; to fix their
compensation, hours of service, and such other duties and conditions as
it may deem proper; to grant to them in its discretion leave of absence
under such regulations as it may promulgate, any other provisions of law
to the contrary notwithstanding, and to remove them for cause after an
investigation and hearing shall have been had.

It is well-established in corporation law that the corporation can act only

through its board of directors, or board of trustees in the case of non-
stock corporations. The board of directors or trustees, therefore, is the
governing body of the corporation.

It is unmistakably evident that the Board of Regents of the University of

the Philippines is performing functions similar to those of the Board of
Trustees of a non-stock corporation. This draws to fore the conclusion
that being a member of such board, accused-movant undoubtedly falls
within the category of public officials upon whom this Court is vested
with original exclusive jurisdiction, regardless of the fact that she does
not occupy a position classified as Salary Grade 27 or higher under the
Compensation and Position Classification Act of 1989.

Finally, this court finds that accused-movants contention that the same
of P15 Million was received from former President Estrada and not from
the coffers of the government, is a matter a defense that should be
properly ventilated during the trial on the merits of this case.[16]

On November 19, 2003, petitioner filed a motion for reconsideration.[17] The

motion was denied with finality in a Resolution dated February 4, 2004.[18]
 Issue

Petitioner is now before this Court, contending that THE

RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACKAND/OR EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION AND DISMISING THE CASE
NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE
OFFENSE CHARGED IN THE INFORMATION.[19]

In her discussion, she reiterates her four-fold argument below, namely: (a) the
Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer
with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not
committed in relation to her office; (d) the funds in question personally came from
President Estrada, not from the government.

Our Ruling

The petition cannot be granted.

Preliminarily, the denial of a motion to

quash is not correctible by certiorari.

We would ordinarily dismiss this petition for certiorari outright on

procedural grounds. Well-established is the rule that when a motion to quash in a
criminal case is denied, the remedy is not a petition for certiorari, but for
petitioners to go to trial, without prejudice to reiterating the special defenses
invoked in their motion to quash.[20]Remedial measures as regards interlocutory
orders, such as a motion to quash, are frowned upon and often dismissed. [21] The
evident reason for this rule is to avoid multiplicity of appeals in a single action.[22]

In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly

explained and illustrated the rule and the exceptions, thus:

As a general rule, an order denying a motion to dismiss is merely

interlocutory and cannot be subject of appeal until final judgment or
order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be
followed in such a case is to file an answer, go to trial and if the decision
is adverse, reiterate the issue on appeal from the final judgment. The
same rule applies to an order denying a motion to quash, except that
instead of filing an answer a plea is entered and no appeal lies from a
judgment of acquittal.

This general rule is subject to certain exceptions. If the court, in

denying the motion to dismiss or motion to quash, acts without or in
excess of jurisdiction or with grave abuse of discretion, then certiorari or
prohibition lies. The reason is that it would be unfair to require the
defendant or accused to undergo the ordeal and expense of a trial if the
court has no jurisdiction over the subject matter or offense, or is not the
court of proper venue, or if the denial of the motion to dismiss or motion
to quash is made with grave abuse of discretion or a whimsical and
capricious exercise of judgment. In such cases, the ordinary remedy of
appeal cannot be plain and adequate. The following are a few examples
of the exceptions to the general rule.

In De Jesus v. Garcia (19 SCRA 554), upon the denial of a

motion to dismiss based on lack of jurisdiction over the subject matter,
this Court granted the petition for certiorari and prohibition against the
City Court of Manila and directed the respondent court to dismiss the
case.

In Lopez v. City Judge (18 SCRA 616), upon the denial of a

motion to quash based on lack of jurisdiction over the offense, this Court
granted the petition for prohibition and enjoined the respondent court
from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a

motion to dismiss based on improper venue, this Court granted the
petition for prohibition and enjoined the respondent judge from taking
cognizance of the case except to dismiss the same.

In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion

to dismiss based on bar by prior judgment, this Court granted the petition
for certiorari and directed the respondent judge to dismiss the case.
 In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a
motion to dismiss based on the Statute of Frauds, this Court granted the
petition for certiorari and dismissed the amended complaint.

In Tacas v. Cariaso (72 SCRA 527), this Court granted the

petition for certiorari after the motion to quash based on double
jeopardy was denied by respondent judge and ordered him to desist from
further action in the criminal case except to dismiss the same.

In People v. Ramos (83 SCRA 11), the order denying the motion
to quash based on prescription was set aside on certiorari and the
criminal case was dismissed by this Court.[24]
We do not find the Sandiganbayan to have committed a grave abuse of
discretion.

The jurisdiction of the Sandiganbayan is

set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.

We first address petitioners contention that the jurisdiction of the

Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and
Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of
the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to
quash before the Sandiganbayan.[25]She repeats the reference in the instant petition
for certiorari[26] and in her memorandum of authorities.[27]

We cannot bring ourselves to write this off as a mere clerical or

typographical error. It bears stressing that petitioner repeated this claim twice
despite corrections made by the Sandiganbayan.[28]

Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than
R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan.
A brief legislative history of the statute creating the Sandiganbayan is in order. The
Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest
norms of official conduct required of public officers and employees, based on the
concept that public officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency and shall remain at all times
accountable to the people.[29]

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was
promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of
the Sandiganbayan.[30]

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983,
further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March
30, 1995 made succeeding amendments to P.D. No. 1606, which was again
amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249
further modified the jurisdiction of the Sandiganbayan. As it now stands, the
Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other 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 989 (Republic Act No.
6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan, and provincial treasurers, assessors, engineers, and other
city department heads;

(b) City mayor, 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
superintended 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 government-owned

or controlled corporations, state universities or educational institutions or
foundations.

(2) Members of Congress and 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) Chairmen and members of Constitutional Commission, without

prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade 27 and
higher under the Compensation and Position Classification Act of 1989.

B. Other offenses of 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 No. 6758, or military and PNP officer mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional 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 judgments, resolutions or order of regional trial courts whether in
the exercise of their own original jurisdiction or of their appellate
jurisdiction as herein provided.

The Sandiganbayan shall have exclusive original jurisdiction over

petitions for 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.

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

implementing rules that the Supreme Court has promulgated and may
thereafter 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.

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.

Any provisions of law or Rules of Court to the contrary notwithstanding,

the criminal action and the corresponding civil action for the recovery of
civil liability shall, at all times, be simultaneously instituted with, and
jointly determined in, the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to
 reserve the filing such civil action separately from the criminal action
shall be recognized: Provided, however, That where the civil action had
heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan
or the appropriate court, said civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, otherwise
the separate civil action shall be deemed abandoned.

Upon the other hand, R.A. No. 3019 is a penal statute approved on August
17, 1960. The said law represses certain acts of public officers and private persons
alike which constitute graft or corrupt practices or which may lead
thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation
of the said law should be filed with the Sandiganbayan.[32]

R.A. No. 3019 does not contain an enumeration of the cases over which the
Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously
cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with
prohibition on private individuals. We quote:

Section 4. Prohibition on private individuals. (a) It shall be

unlawful for any person having family or close personal relation with
any public official to capitalize or exploit or take advantage of such
family or close personal relation by directly or indirectly requesting or
receiving any present, gift or material or pecuniary advantage from any
other person having some business, transaction, application, request or
contract with the government, in which such public official has to
intervene. Family relation shall include the spouse or relatives by
consanguinity or affinity in the third civil degree. The word close
personal relation shall include close personal friendship, social and
fraternal connections, and professional employment all giving rise to
intimacy which assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or

cause any public official to commit any of the offenses defined in
Section 3 hereof.
 In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the
jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft
and corrupt practices and provides for their penalties.

Sandiganbayan has jurisdiction over

the offense of estafa.

Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not
among those crimes cognizable by the Sandiganbayan. We note that in hoisting
this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606,
without regard to the succeeding paragraphs of the said provision.

The rule is well-established in this jurisdiction that statutes should receive a

sensible construction so as to avoid an unjust or an absurd
conclusion.[33] Interpretatio talis in ambiguis semper fienda est, ut evitetur
inconveniens et absurdum. Where there is ambiguity, such interpretation as will
avoid inconvenience and absurdity is to be adopted. Kung saan mayroong
kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-
tawa.

Every section, provision or clause of the statute must be expounded by

reference to each other in order to arrive at the effect contemplated by the
legislature.[34] The intention of the legislator must be ascertained from the whole
text of the law and every part of the act is to be taken into view. [35] In other words,
petitioners interpretation lies in direct opposition to the rule that a statute must be
interpreted as a whole under the principle that the best interpreter of a statute is the
statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang batas
ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng
prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas.

Section 4(B) of P.D. No. 1606 reads:

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.
Evidently, the Sandiganbayan has jurisdiction over other felonies committed by
public officials in relation to their office. We see no plausible or sensible reason to
exclude estafaas one of the offenses included in Section 4(B) of P.D. No.
1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply
subject to the twin requirements that (a) the offense is committed by public
officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended,
and that (b) the offense is committed in relation to their office.

In Perlas, Jr. v. People,[37] the Court had occasion to explain that the
Sandiganbayan has jurisdiction over an indictment for estafa versus a director of
the National Parks Development Committee, a government instrumentality. The
Court held then:

The National Parks Development Committee was created

originally as an Executive Committee on January 14, 1963, for the
development of the Quezon Memorial, Luneta and other national parks
(Executive Order No. 30). It was later designated as the National Parks
Development Committee (NPDC) on February 7, 1974 (E.O. No.
69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F.
Valencia were designated Chairman and Vice-Chairman respectively
(E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest
Development, Department of Natural Resources, on December 1,
1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830,
dated November 27, 1975), the NPDC has remained under the Office of
the President (E.O. No. 709, dated July 27, 1981).

Since 1977 to 1981, the annual appropriations decrees listed

NPDC as a regular government agency under the Office of the President
and allotments for its maintenance and operating expenses were issued
direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).

The Sandiganbayans jurisdiction over estafa was reiterated with greater

firmness in Bondoc v. Sandiganbayan.[38] Pertinent parts of the Courts ruling in
Bondoc read:
 Furthermore, it is not legally possible to transfer Bondocs cases to
the Regional Trial Court, for the simple reason that the latter would not
have jurisdiction over the offenses. As already above intimated, the
inability of the Sandiganbayan to hold a joint trial of Bondocs cases and
those of the government employees separately charged for the same
crimes, has not altered the nature of the offenses charged, as estafa thru
falsification punishable by penalties higher than prision correccional or
imprisonment of six years, or a fine of P6,000.00, committed by
government employees in conspiracy with private persons, including
Bondoc. These crimes are within the exclusive, original jurisdiction of
the Sandiganbayan. They simply cannot be taken cognizance of by the
regular courts, apart from the fact that even if the cases could be so
transferred, a joint trial would nonetheless not be possible.

Petitioner UP student regent

is a public officer.

Petitioner also contends that she is not a public officer. She does not receive
any salary or remuneration as a UP student regent. This is not the first or likely the
last time that We will be called upon to define a public officer. In Khan, Jr. v.
Office of the Ombudsman, We ruled that it is difficult to pin down the definition of
a public officer.[39] The 1987 Constitution does not define who are public officers.
Rather, the varied definitions and concepts are found in different statutes and
jurisprudence.

In Aparri v. Court of Appeals,[40] the Court held that:

A public office is the right, authority, and duty created and

conferred by law, by which for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of the government, to be
exercise by him for the benefit of the public ([Mechem Public Offices
and Officers,] Sec. 1). The right to hold a public office under our
political system is therefore not a natural right. It exists, when it exists at
all only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such
thing as a vested interest or an estate in an office, or even an absolute
right to hold office. Excepting constitutional offices which provide for
 special immunity as regards salary and tenure, no one can be said to have
any vested right in an office or its salary (42 Am. Jur. 881).

In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public

office:

A public office is the right, authority and duty, created and

conferred by law, by which, for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is invested
with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so
invested is a public officer.[42]

Petitioner claims that she is not a public officer with Salary Grade 27; she is,
in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is
not only the salary grade that determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has jurisdiction over other
[43]
officers enumerated in P.D. No. 1606. In Geduspan v. People, We held that
while the first part of Section 4(A) covers only officials with
Salary Grade 27 and higher, its second part specifically includes other
executive officials whose positions may not be of Salary Grade 27 and higher but
who are by express provision of law placed under the jurisdiction of the said
court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed
there by express provision of law.[44]

Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan

with jurisdiction over Presidents, directors or trustees, or managers of government-
owned or controlled corporations, state universities or educational institutions or
foundations. Petitioner falls under this category. As the Sandiganbayan pointed
out, the BOR performs functions similar to those of a board of trustees of a non-
stock corporation.[45] By express mandate of law, petitioner is, indeed, a public
officer as contemplated by P.D. No. 1606.

Moreover, it is well established that compensation is not an essential element of

public office.[46] At most, it is merely incidental to the public office.[47]
 Delegation of sovereign functions is essential in the public office. An
investment in an individual of some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public makes one a
public officer.[48]

The administration of the UP is a sovereign function in line with Article XIV

of the Constitution. UP performs a legitimate governmental function by providing
advanced instruction in literature, philosophy, the sciences, and arts, and giving
professional and technical training.[49] Moreover, UP is maintained by the
Government and it declares no dividends and is not a corporation created for
profit.[50]

The offense charged was committed

in relation to public office, according
to the Information.

Petitioner likewise argues that even assuming that she is a public officer, the
Sandiganbayan would still not have jurisdiction over the offense because it was not
committed in relation to her office.

According to petitioner, she had no power or authority to act without the

approval of the BOR. She adds there was no Board Resolution issued by the BOR
authorizing her to contract with then President Estrada; and that her acts were not
ratified by the governing body of the state university. Resultantly, her act was done
in a private capacity and not in relation to public office.

It is axiomatic that jurisdiction is determined by the averments in the

information.[51] More than that, jurisdiction is not affected by the pleas or the
theories set up by defendant or respondent in an answer, a motion to dismiss, or a
motion to quash.[52] Otherwise, jurisdiction would become dependent almost
entirely upon the whims of defendant or respondent.[53]

In the case at bench, the information alleged, in no uncertain terms that

petitioner, being then a student regent of U.P., while in the performance of her
official functions, committing the offense in relation to her office and taking
advantage of her position, with intent to gain, conspiring with her
brother, JADE IAN D. SERANA, a private individual, did then and there wilfully,
unlawfully and feloniously defraud the government x x x. (Underscoring supplied)

Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan
when it did not quash the information based on this ground.

Source of funds is a defense that should

be raised during trial on the merits.

It is contended anew that the amount came from President Estradas private funds
and not from the government coffers. Petitioner insists the charge has no leg to
stand on.

We cannot agree. The information alleges that the funds came from the Office of
the President and not its then occupant, President Joseph Ejercito Estrada. Under
the information, it is averred that petitioner requested the amount of Fifteen
Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the
President, and the latter relying and believing on said false pretenses and
misrepresentation gave and delivered to said accused Land Bank Check No. 91353
dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00).

Again, the Court sustains the Sandiganbayan observation that the source of
the P15,000,000 is a matter of defense that should be ventilated during the trial on
the merits of the instant case.[54]

A lawyer owes candor, fairness

and honesty to the Court.

As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented

his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A.
No. 3019. A review of his motion to quash, the instant petition for certiorari and
his memorandum, unveils the misquotation. We urge petitioners counsel to observe
Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the
Rules stating that a lawyer shall not misquote or misrepresent.
 The Court stressed the importance of this rule in Pangan v. Ramos,[55] where
Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a
criminal case. The Court ruled that Atty. Ramos resorted to deception by using a
name different from that with which he was authorized. We severely reprimanded
Atty. Ramos and warned that a repetition may warrant suspension or
disbarment.[56]

We admonish petitioners counsel to be more careful and accurate in his

citation. A lawyers conduct before the court should be characterized by candor and
fairness.[57]The administration of justice would gravely suffer if lawyers do not act
with complete candor and honesty before the courts.[58]

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice
 ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
D.H. disini vs secretary of justice february 18 2014

EN BANC

G.R. No. 203335, February 18, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL AND
ERNESTO SONIDO, JR., Petitioners, v. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE AND THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

[G.R. No. 203299]

LOUIS �BAROK� C. BIRAOGO, Petitioner, v. NATIONAL BUREAU OF INVESTIGATION AND

PHILIPPINE NATIONAL POLICE, Respondents.

[G.R. No. 203306]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI �TOTO� CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, v. OFFICE OF THE
PRESIDENT, REPRESENTED BY PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE
PHILIPPINES, AND HOUSE OF REPRESENTATIVES, Respondents.

[G.R. No. 203359]

SENATOR TEOFISTO DL GUINGONA III, Petitioner, v. EXECUTIVE SECRETARY, THE SECRETARY OF

JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

[G.R. No. 203378]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L.

ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, Petitioners, v. THE EXECUTIVE
SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE,
THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.

[G.R. No. 203391]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners, v.PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY AND
ALTER-EGO OF PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER CAPACITY AS
SECRETARY OF JUSTICE, Respondents.

[G.R. No. 203407]

 BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., NATIONAL
ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS OF THE PHILIPPINES,
ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO, CRISTINA E. PALABAY, SECRETARY
GENERAL OF KARAPATAN, FERDINAND R. GAITE, CHAIRPERSON OF COURAGE, JOEL B.
MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS PARTY-LIST, LANA R. LINABAN, SECRETARY
GENERAL GABRIELA WOMEN�S PARTY, ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA
MATIBAG, Petitioners, v. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES,
REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, SECRETARY OF THE
DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE, EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, NONNATUS CAESAR R. ROJAS,
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, D/GEN. NICANOR A. BARTOLOME,
CHIEF OF THE PHILIPPINE NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondents.

[G.R. No. 203440]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF THE ATENEO HUMAN
RIGHTS CENTER), Petitioners, v. HONORABLE PAQUITO OCHOA IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HONORABLE LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF JUSTICE,
HONORABLE MANUEL ROXAS IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE DEPARTMENT
OF GOVERNMENT), Respondents.

[G.R. No. 203453]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE

(PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-TO-RA10175/, Petitioners, v. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL
OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR
INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT
NO. 10175, Respondents.

[G.R. No. 203454]

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, v. THE HON. SECRETARY OF
JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, Respondents.

[G.R. No. 203469]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P.
RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS
IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; AND PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON;
PETITIONERS, VS. HIS EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY HON.
JUAN PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES,
REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE
OF REPRESENTATIVES; HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE
SECRETARY; HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE; HON. LOUIS
NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE; HON. NONNATUS CAESAR R. ROJAS, IN HIS CAPACITY
AS DIRECTOR, NATIONAL BUREAU OF INVESTIGATION; AND P/DGEN. NICANOR A. BARTOLOME,
IN HIS CAPACITY AS CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

[G.R. No. 203501]

PHILIPPINE BAR ASSOCIATION, INC., Petitioner, v. HIS EXCELLENCY BENIGNO S. AQUINO III, IN
HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; HON. PAQUITO
N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA,
IN HER OFFICIAL CAPACITY AS SECRETARY OF JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS
OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE; NONNATUS CAESAR R. ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A.
BARTOLOME, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE NATIONAL
POLICE, Respondents.

[G.R. No. 203509]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, v. THE EXECUTIVE SECRETARY

PAQUITO OCHOA, JR., Respondents.

[G.R. No. 203515]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D. ANTIPORDA IN

HIS CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY, Petitioner, v. OFFICE OF THE
PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

[G.R. No. 203518]

PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE COLLECTIVE

FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO LAKAS NG MASA,
REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASI�O, NOEMI LARDIZABAL-DADO, IMELDA MORALES,
JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M.
MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH
KENG, ANA ALEXANDRA C. CASTRO, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF
SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE
NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS
OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a
person can connect to the internet, a system that links him to other computers and enable him, among
other things, to:
chanRobles Vi rt ualawlib ra ry

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for
greater information and facility of communication. But all is not well with the system since it could not filter
out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes.
One of them can, for instance, avail himself of the system to unjustly ruin the reputation of another or bully
the latter by posting defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can
use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or
credit card or defrauding him through false representations. The wicked can use the cyberspace, too, for
illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet. For
this reason, the government has a legitimate right to regulate the use of cyberspace and contain and punish
wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or virtual
dynamites that destroy those computer systems, networks, programs, and memories. The government
certainly has the duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on
the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would enable the
government to track down and penalize violators. These provisions are: cha nRobles Vi rtua lawlib rary

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

 h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC�s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the
crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides: c hanRobles Vi rt ualawlib ra ry

Section 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under
this Act:chanRobles Virtualawl ibra ry

(a) Offenses against the confidentiality, integrity and availability of computer data and systems: chanRobles Vi rtua lawlib rary

(1) Illegal Access. - The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1� useful�
in� determining� the constitutionality of laws that tend to target a class of things or persons. According to
this standard, a legislative classification that impermissibly interferes with the exercise of fundamental right
or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is
on the government to prove that the classification is necessary to achieve a compelling state interest and
that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny standard was used to
assess the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal protection.3 cra llawlib ra ry

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a
condemnable act - accessing the computer system of another without right. It is a universally condemned
conduct.4 crallawlib ra ry

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target system�s security and report back to the owners the
vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to verify its bookkeeping records.5 cral lawlib rary

Besides, a client�s engagement of an ethical hacker requires an agreement between them as to the extent
of the search, the methods to be used, and the systems to be tested. This is referred to as the �get out of
jail free card.�6 Since the ethical hacker does his job with prior permission from the client, such permission
would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides: c hanRobles Vi rt ualawlib ra ry

Section 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under
this Act:
chanRobles Virtualawl ibra ry

(a) Offenses against the confidentiality, integrity and availability of computer data and systems: chanRobles Vi rtua lawlib rary

xxxx

(3) Data Interference. - The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the introduction or
transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation,
may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes
what essentially is a form of vandalism,8 the act of willfully destroying without right the things that belong to
others, in this case their computer data, electronic document, or electronic data message. Such act has no
connection to guaranteed freedoms. There is no freedom to destroy other people�s computer systems and
private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or
the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill
such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of one�s
constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides: c hanRobles Vi rt ualawlib ra ry

Section 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under
this Act:
chanRobles Virtualawl ibra ry

(a) Offenses against the confidentiality, integrity and availability of computer data and systems: chanRobles Vi rtua lawlib rary

xxxx

(6) Cyber-squatting. - The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is: chanRobles Vi rtua lawlib rary

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not
being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named �Julio Gandolfo,� the law would punish for
cyber-squatting both the person who registers such name because he claims it to be his pseudo-name and
another who registers the name because it happens to be his real name. Petitioners claim that, considering
the substantial distinction between the two, the law should recognize the difference.

But there is no real difference whether he uses �Julio Gandolfo� which happens to be his real name or use
it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.
The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides: chanRob les Vi rtualaw lib rary

Section 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under
this Act:
chanRobles Virtualawl ibra ry

xxxx

b) Computer-related Offenses: chanRob les Virtualawl ibra ry

xxxx

(3) Computer-related Identity Theft. - The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical, without
right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of
the right protected by the guarantee against unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the �Zones of Privacy.� The
Court explained in �In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon�15 the relevance of these zones to the right to privacy: chanRoble sVirt ualawli bra ry

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard
we accord to these zones arises not only from our conviction that the right to privacy is a �constitutional
right� and �the right most valued by civilized men,� but also from our adherence to the Universal
Declaration of Human Rights which mandates that, �no one shall be subjected to arbitrary interference with
his privacy� and �everyone has the right to the protection of the law against such interference or attacks.�
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 cral lawlib rary

In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18 cral lawlib rary

The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation, and
similar data.19 The law punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related
identity theft violates the right to privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the
specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of
another. There is no fundamental right to acquire another�s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account of a person in the news to secure information about
him that could be published. But this is not the essence of identity theft that the law seeks to prohibit and
punish. Evidently, the theft of identity information must be intended for an illegitimate purpose. Moreover,
acquiring and disseminating information made public by the user himself cannot be regarded as a form of
theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is
present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides: chanRob les Virtualawl ibra ry

Sec. 4. Cybercrime Offenses.- The following acts constitute the offense of cybercrime punishable under this
Act:chanRobles Virtualawl ibra ry

xxxx

(c) Content-related Offenses: chanRoble sVirtualawli bra ry

(1) Cybersex.- The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done �for favor� in cyberspace. In common usage, the term �favor� includes �gracious kindness,� �a
special privilege or right granted or conceded,� or �a token of love (as a ribbon) usually worn
conspicuously.�22 This meaning given to the term �favor� embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention
Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize a �private
showing x x x between and among two private persons x x x although that may be a form of obscenity to
some.�23 The understanding of those who drew up the cybercrime law is that the element of �engaging in a
business� is necessary to constitute the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25 crallawlib rary

The subject of Section 4(c)(1)�lascivious exhibition of sexual organs or sexual activity�is not novel. Article
201 of the RPC punishes �obscene publications and exhibitions and indecent shows.� The Anti-Trafficking
in Persons Act of 2003 penalizes those who �maintain or hire a person to engage in prostitution or
pornography.�26 The law defines prostitution as any act, transaction, scheme, or design involving the use of
a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or any other
consideration.27 cra llawlib ra ry

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no
other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property
rights of individuals against the public welfare. Private property, if containing pornographic materials, may
be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery
and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides: chanRob les Virtualawl ibra ry

Sec. 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under this
Act:chanRobles Virtualawl ibra ry

xxxx

(c) Content-related Offenses: chanRoble sVirtualawli bra ry

xxxx

(2) Child Pornography. � The unlawful or prohibited acts defined and

punishable by Republic Act No. 9775 or the Anti-Child Pornography Act
of 2009, committed through a computer system: Provided, That the
penalty to be imposed shall be (1) one degree higher than that provided
for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to
cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA
when prosecuting persons who commit child pornography using a computer system. Actually, ACPA�s
definition of child pornography already embraces the use of �electronic, mechanical, digital, optical,
magnetic or any other means.� Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But
no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece of
child pornography when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to �produce, direct,
manufacture or create any form of child pornography�33 clearly relates to the prosecution of persons who
aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely
doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child
pornography but one who formulates the idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides: chanRob les Virtualawl ibra ry

Sec. 4. Cybercrime Offenses. - The following acts constitute the offense of cybercrime punishable under this
Act:chanRobles Virtualawl ibra ry

xxxx

(c) Content-related Offenses: chanRoble sVirtualawli bra ry

xxxx
(3) Unsolicited Commercial Communications. - The transmission of commercial electronic communication
with the use of computer system which seeks to advertise, sell, or offer for sale products and services are
prohibited unless: cha nRobles Vi rtua lawlib rary

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present: chanRob les Virtualawl ibra ry

(aa)�� The commercial electronic communication contains a simple, valid, and reliable way for the recipient
to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb)�� The commercial electronic communication does not purposely disguise the source of the electronic
message; and

(cc)�� The commercial electronic communication does not purposely include misleading information in any
part of the message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as �spam.�
The term �spam� surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a �spam.� The term referred to a Monty Python�s
Flying Circus scene in which actors would keep saying �Spam, Spam, Spam, and Spam� when reading
options from a menu.35 crallawlib rary

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet service
providers, reduces the efficiency of commerce and technology, and interferes with the owner�s peaceful
enjoyment of his property. Transmitting spams amounts to trespass to one�s privacy since the person
sending out spams enters the recipient�s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
�efficiency of computers.� Secondly, people, before the arrival of the age of computers, have already been
receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might
have interest in such ads. What matters is that the recipient has the option of not opening or reading these
mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is
not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate
forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4)
of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read: chanRoble sVirt ualawli bra ry

Art. 353. Definition of libel. � A libel is public and malicious imputation of a crime, or of a vice or defect, real
or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. � Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases: chanRob les Vi rtualaw lib rary

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. � A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any
similar means, shall be punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads: chanRoble sVirt ualawli bra ry

Sec. 4. Cybercrime Offenses. � The following acts constitute the offense of cybercrime punishable under this
Act:chanRobles Virtualawl ibra ry

xxxx

(c) Content-related Offenses: chanRoble sVirtualawli bra ry

xxxx

(4) Libel. � The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the
future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of �presumed malice� even when the latest jurisprudence
already replaces it with the higher standard of �actual malice� as a basis for conviction.38Petitioners argue
that inferring �presumed malice� from the accused�s defamatory statement by virtue of Article 354 of the
penal code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional
for otherwise good jurisprudence requiring �actual malice� could easily be overturned as the Court has
done in Fermin v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40 cra llawli bra ry

There is �actual malice� or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard
standard used here requires a high degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross or even extreme negligence is not sufficient to establish actual malice.43 cral lawlib rary

The prosecution bears the burden of proving the presence of actual malice in instances where such element
is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to
be false, is available where the offended party is a public official or a public figure, as in the cases
of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private
persons, the Court recognizes that these laws imply a stricter standard of �malice� to convict the author of
a defamatory statement where the offended party is a public figure. Society�s interest and the maintenance
of good government demand a full discussion of public affairs.44 crallawli bra ry

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence of malice in fact in that case.
Thus: chanRobles Virtualawl ibra ry

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in
the above case, cinema and television personalities, when it modified the penalty of imprisonment to just a
fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice.
The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed
statement.45 For his defense, the accused must show that he has a justifiable reason for the defamatory
statement even if it was in fact true.46 crallawli bra ry

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country�s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out
that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited
its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that
the accused has been prompted in making the statement by good motives and for justifiable ends. Thus: chanRobles Vi rtua lawlib rary

Art. 361. Proof of the truth. � In every criminal prosecution for libel, the truth may be given in evidence to
the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published
with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related to
the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.49 cral lawlib rary

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually
not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect,
Section 4(c)(4) above merely affirms that online defamation constitutes �similar means� for committing
libel.

But the Court�s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions
on libel were enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they
are a world apart in terms of quickness of the reader�s reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with
which such reactions are disseminated down the line to other internet users. Whether these reactions to
defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of the
law.

Section 5 of the Cybercrime Law

Section 5 provides: cha nRobles Vi rtua lawlib rary

Sec. 5. Other Offenses. � The following acts shall also constitute an offense: chanRoblesVirtualawl ibra ry

(a) Aiding or Abetting in the Commission of Cybercrime. - Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. � Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It
suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of �netizens,� the multitude that avail themselves
of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate the
meaning of �aiding or abetting� a crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing the
law.51 The legislature is not required to define every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids
or abets another in destroying a forest,52smuggling merchandise into the country,53 or interfering in the
peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy assessment as
criminal in character. These forms of aiding or abetting lend themselves to the tests of common sense and
human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of �aiding or abetting� wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet
within a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in
the top 10 most engaged countries for social networking.56 Social networking sites build social relations
among people who, for example, share interests, activities, backgrounds, or real-life connections.57 crallawl ib rary

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58Users register at this site, create a personal profile or an
open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on Facebook,
which can be made visible to anyone, depending on the user�s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the program�s screen
such as �Like,� �Comment,� or �Share.� �Like� signifies that the reader likes the posting while
�Comment� enables him to post online his feelings or views about the same, such as �This is great!�
When a Facebook user �Shares� a posting, the original �posting� will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users
to send and read short text-based messages of up to 140 characters. These are known as �Tweets.�
Microblogging is the practice of posting small pieces of digital content�which could be in the form of text,
pictures, links, short videos, or other media�on the internet. Instead of friends, a Twitter user has
�Followers,� those who subscribe to this particular user�s posts, enabling them to read the same, and
�Following,� those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can �Retweet� a given posting. Retweeting is just reposting
or republishing another person�s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog
service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet
caf� that may have provided the computer used for posting the blog; e) the person who makes a favorable
comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the internet to access her blog so
she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit
affair with a movie star. Linda, one of Maria�s friends who sees this post, comments online, �Yes, this is so
true! They are so immoral.� Maria�s original post is then multiplied by her friends and the latter�s friends,
and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda,
comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her
Twitter account. Nena�s �Followers� then �Retweet� the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person�s �Retweet� of Nena�s original tweet and posts
this on her Facebook account. Immediately, Pamela�s Facebook Friends start Liking and making Comments
on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as �Liking� an openly defamatory statement, �Commenting� on
it, or �Sharing� it with others, to be regarded as �aiding or abetting?� In libel in the physical world, if
Nestor places on the office bulletin board a small poster that says, �Armand is a thief!,� he could certainly
be charged with libel. If Roger, seeing the poster, writes on it, �I like this!,� that could not be libel since he
did not author the poster. If Arthur, passing by and noticing the poster, writes on it, �Correct!,� would that
be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, �Armand is a thief!� on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the �Like,� �Comment,� and �Share� reactions,
be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response
to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility
of joining hundreds or thousands of responding �Friends� or �Followers� in the criminal charge to be filed
in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when
applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the millions that use this new
medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case
involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the
knowing transmission, by means of a telecommunications device, of �obscene or indecent�
communications to any recipient under 18 years of age; and (2) the knowing use of an interactive computer
service to send to a specific person or persons under 18 years of age or to display in a manner available to a
person under 18 years of age communications that, in context, depict or describe, in terms �patently
offensive� as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment�s guarantee of freedom of
speech for being overbroad. The U.S. Supreme Court agreed and ruled: c hanRoble sVirt ualawli bra ry

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. �223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images.As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. � 223, presents a great threat of
censoring speech that, in fact, falls outside the statute�s scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA�s burden on protected speech cannot be justified if it could be
avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person�s image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand
in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person�s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected freedoms.62 c rallawl ibra ry
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users
will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of
facts to prevent arbitrary and discriminatory enforcement.63 The terms �aiding or abetting� constitute
broad sweep that generates chilling effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law that punishes �aiding or
abetting� libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65�we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes
as appropriate only insofar as these doctrines are used to mount �facial� challenges to penal statutes not
involving free speech.�

In an �as applied� challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground - absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on
the violation of the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.66cral lawlib rary

But this rule admits of exceptions. A petitioner may for instance mount a �facial� challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where
it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this
exception is to counter the �chilling effect� on protected speech that comes from statutes violating free
speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague
law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67 c rallawl ibra ry

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable

that any government threat of punishment regarding certain uses of the medium creates a chilling effect on
the constitutionally-protected freedom of expression of the great masses that use it. In this case, the
particularly complex web of interaction on social media websites would give law enforcers such latitude that
they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it?
Netizens are not given �fair notice� or warning as to what is criminal conduct and what is lawful conduct.
When a case is filed, how will the court ascertain whether or not one netizen�s comment aided and abetted
a cybercrime while another comment did not?

Of course, if the �Comment� does not merely react to the original posting but creates an altogether new
defamatory story against Armand like �He beats his wife and children,� then that should be considered an
original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed
to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in
their relationships.

In regard to the crime that targets child pornography, when �Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography,� does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks�the exemption of a provider or notably a plain user of interactive computer service
from civil liability for child pornography as follows: chanRobles Vi rt ualawlib ra ry

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally protected.69 cral lawlib rary

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography?
When a user downloads the Facebook mobile application, the user may give consent to Facebook to access
his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.70 As the source of this information, is
the user aiding the distribution of this communication? The legislature needs to address this clearly to
relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part
of internet users because of its obvious chilling effect on the freedom of expression, especially since the
crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as
the petitioners point out, formal crimes such as libel are not punishable unless consummated.71 In the
absence of legislation tracing the interaction of netizens and their level of responsibility such as in other
countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to
apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6)
on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these
offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A
hacker may for instance have done all that is necessary to illegally access another party�s computer system
but the security employed by the system�s lawful owner could frustrate his effort. Another hacker may
have gained access to usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may
be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to
commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section
4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as
the actors aiding and abetting the commission of such acts can be identified with some reasonable certainty
through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be
spared.

Section 6 of the Cybercrime Law

Section 6 provides:cha nRobles Vi rtua lawlib rary

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be covered
by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree
higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through the
use of information and communications technology and similar crimes committed using other means. In
using the technology in question, the offender often evades identification and is able to reach far more
victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:cha nRobles Vi rtua lawlib rary

Sec. 7. Liability under Other Laws. � A prosecution under this Act shall be without prejudice to any liability
for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts
may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other
although both offenses arise from the same fact, if each crime involves some important act which is not an
essential element of the other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct application of Section 7 to actual
cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate
libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws would be a blatant violation of the
proscription against double jeopardy.76 cral lawlib rary

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA�s
scope so as to include identical activities in cyberspace. As previously discussed, ACPA�s definition of child
pornography in fact already covers the use of �electronic, mechanical, digital, optical, magnetic or any
other means.� Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:cha nRobles Vi rtua lawlib rary

Sec. 8. Penalties. � Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and
4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred
thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the �Anti-Child Pornography Act of
2009:� Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding
Two hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is not
diluted or improperly wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime.77 Judges and magistrates can only
interpret and apply them and have no authority to modify or revise their range as determined by the
legislative department. The courts should not encroach on this prerogative of the lawmaking body.78 crallawl ib rary
Section 12 of the Cybercrime Law

Section 12 provides: cha nRobles Vi rtua lawlib rary

Sec. 12. Real-Time Collection of Traffic Data. � Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.

Traffic data refer only to the communication�s origin, destination, route, time, date, size, duration, or type
of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and
the examination under oath or affirmation of the applicant and the witnesses he may produce and the
showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2) that there are reasonable
grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to
the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real
time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data
showing where digital messages come from, what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the messages or information
that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require
the disclosure of matters normally considered private but then only upon showing that such requirement has
a rational relation to the purpose of the law,79 that there is a compelling State interest behind the law, and
that the provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should
balance the legitimate concerns of the State against constitutional guarantees.81 crallawli bra ry

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put
order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason
that the government should be able to monitor traffic data to enhance its ability to combat all sorts of
cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and investigating
crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points
out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative measures to
empower state authorities to collect or record �traffic data, in real time, associated with specified
communications.�83 And this is precisely what Section 12 does. It empowers law enforcement agencies in
this country to collect or record such data.

But is not evidence of yesterday�s traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently,
it is not. Those who commit the crimes of accessing a computer system without right,84transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration;86 and producing
child pornography87 could easily evade detection and prosecution by simply moving the physical location of
their computers or laptops from day to day. In this digital age, the wicked can commit cybercrimes from
virtually anywhere: from internet caf�s, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor identified. There are
many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could
use relays of computers to mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the people�s right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89 cra llawli brary

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into
two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right�the right to informational privacy�that those
who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to
live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the
right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92cra llawli bra ry

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular
person or group, petitioners� challenge to Section 12 applies to all information and communications
technology (ICT) users, meaning the large segment of the population who use all sorts of electronic devices
to communicate with one another. Consequently, the expectation of privacy is to be measured from the
general public�s point of view. Without reasonable expectation of privacy, the right to it would have no
basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service
provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting him
to the recipient ICT user. For example, an ICT user who writes a text message intended for another ICT user
must furnish his service provider with his cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the traffic data. Transmitting
communications is akin to putting a letter in an envelope properly addressed, sealing it closed, and sending
it through the postal service. Those who post letters have no expectations that no one will read the
information appearing outside the envelope.

Computer data�messages of all kinds�travel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header. This
header contains the traffic data: information that tells computers where the packet originated, what kind of
data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data, etc.),
where the packet is going, and how the packet fits together with other packets.93 The difference is that
traffic data sent through the internet at times across the ocean do not disclose the actual names and
addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced back
together. Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider�s
communication�s system will put his voice message into packets and send them to the other person�s
cellphone where they are refitted together and heard. The latter�s spoken reply is sent to the caller in the
same way. To be connected by the service provider, the sender reveals his cellphone number to the service
provider when he puts his call through. He also reveals the cellphone number to the person he calls. The
other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the �70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to recognize
as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain traffic
data that are needed for a successful cyberspace communication. The conveyance of this data takes them
out of the private sphere, making the expectation to privacy in regard to them an expectation that society is
not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data
are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be
used to create profiles of the persons under surveillance. With enough traffic data, analysts may be able to
determine a person�s close associations, religious views, political affiliations, even sexual preferences. Such
information is likely beyond what the public may expect to be disclosed, and clearly falls within matters
protected by the right to privacy. But has the procedure that Section 12 of the law provides been drawn
narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, �with due cause,� to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase �due cause� has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of the
police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning of
every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime
law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase �due cause.� The
Solicitor General suggests that �due cause� should mean �just reason or motive� and �adherence to a
lawful procedure.� But the Court cannot draw this meaning since Section 12 does not even bother to relate
the collection of data to the probable commission of a particular crime. It just says, �with due cause,� thus
justifying a general gathering of data. It is akin to the use of a general search warrant that the Constitution
prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to
build up a case against an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it
says that traffic data collection should not disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking
into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those �associated with specified
communications.� But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in �fishing expedition,� choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data �in real time�
because it is not possible to get a court warrant that would authorize the search of what is akin to a
�moving vehicle.� But warrantless search is associated with a police officer�s determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be removed. These preconditions
are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section 12
is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.95 cral lawlib rary

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this Court
to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even
impossible. �All the forces of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society.�96 The Court must ensure that laws seeking
to take advantage of these technologies be written with specificity and definiteness as to ensure respect for
the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides: cha nRobles Vi rtua lawlib rary

Sec. 13. Preservation of Computer Data. � The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6)
months from the date of the transaction. Content data shall be similarly preserved for six (6) months from
the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the
mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property.
They liken the data preservation order that law enforcement authorities are to issue as a form of
garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has an
obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue
of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction and
those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded.
The service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders
of law enforcement authorities are not made inaccessible to users by reason of the issuance of such orders.
The process of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides: cha nRobles Vi rtua lawlib rary

Sec. 14. Disclosure of Computer Data. � Law enforcement authorities, upon securing a court warrant, shall
issue an order requiring any person or service provider to disclose or submit subscriber�s information,
traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the
order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners� objection
is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue
subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoena as an
adjunct of their investigatory powers.98 cra llawlib ra ry

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate
the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides: chanRoblesVirtualawlib rary

Sec. 15. Search, Seizure and Examination of Computer Data. � Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: chanRobles Vi rtualaw lib rary

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data therein to
provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and
examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement authorities
that would ensure the proper collection, preservation, and use of computer system or data that have been
seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does not appear to supersede existing search and seizure
rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides: cha nRobles Vi rtua lawlib rary

Sec. 17. Destruction of Computer Data. � Upon expiration of the periods as provided in Sections 13 and 15,
service providers and law enforcement authorities, as the case may be, shall immediately and completely
destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up
the service provider�s storage systems and prevent overload. It would also ensure that investigations are
quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the user�s right against deprivation of property without due process of law. But, as already stated,
it is unclear that the user has a demandable right to require the service provider to have that copy of the
data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved
them in his computer when he generated the data or received it. He could also request the service provider
for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data: chanRobles Vi rtualaw lib rary

Sec. 19. Restricting or Blocking Access to Computer Data.� When a computer data is prima facie found to
be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such
computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of property
rights in the digital space, it is indisputable that computer data, produced or created by their writers or
authors may constitute personal property. Consequently, they are protected from unreasonable searches
and seizures, whether while stored in their personal computers or in the service provider�s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one�s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes and places the computer data under its
control and disposition without a warrant. The Department of Justice order cannot substitute for judicial
search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected.
Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an
executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for
him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one.100 cra llawlib ra ry

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally
evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.101 Section 19, however, merely requires that the data to
be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides: cha nRobles Vi rtua lawlib rary

Sec. 20. Noncompliance. � Failure to comply with the provisions of Chapter IV hereof specifically the orders
from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with
imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement
authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure
to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance would
be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section
20 necessarily incorporates elements of the offense which are defined therein. If Congress had intended for
Section 20 to constitute an offense in and of itself, it would not have had to make reference to any other
statue or provision.

P.D. 1829 states: chanRobles Virtualawl ibra ry

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates
or delays the apprehension of suspects and the investigation and prosecution of criminal cases by
committing any of the following acts:�� x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done �knowingly or willfully.� There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide: chanRob les Vi rtualaw lib rary

Sec. 24. Cybercrime Investigation and Coordinating Center.- There is hereby created, within thirty (30) days
from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and
Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.

Sec. 26. Powers and Functions.- The CICC shall have the following powers and functions: chanRobles Vi rt ualawlib ra ry

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without
any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete
in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only
thing he will have to do is to enforce it. The second test mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegate�s authority and prevent the delegation from running
riot.103 c rallawl ibra ry

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and
user�s assets.104 This definition serves as the parameters within which CICC should work in formulating the
cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to �prevent and
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international
cooperation.�105 This policy is clearly adopted in the interest of law and order, which has been considered as
sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

1. VOID for being UNCONSTITUTIONAL: chanRobles Vi rtualaw lib rary

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
���
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
���
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL: chanRoblesVirt ualawli bra ry

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad
faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
 f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal
Code are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-
issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

���
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
���
o. Section 26(a) that defines the CICC�s Powers and Functions; and
���
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES: chanRobles Vi rt ualawlib ra ry

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the
post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section
4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual
cases, WITH THE EXCEPTION of the crimes of: chanRob les Virtualawl ibra ry

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes, JJ., concur.
Sereno, C.J., Carpio, and Leonen, JJ., see concurring and dissenting opinion.
Velasco, J., no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., join Justice Brion in all his positions.
Perlas-Bernabe, J., no part.
RULE 110: jimenez vs sorongon

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 178607 December 5, 2012

DANTE LA. JIMENEZ, in his capacity as President and representative of UNLAD SHIPPING &
MANAGEMENT CORPORATION, Petitioner,
vs.
HON. EDWIN SORONGON (in his capacity as Presiding Judge of Branch 214 of the Regional
Trial Court of Mandaluyong City), SOCRATES ANTZOULATOS, CARMEN ALAMIL, MARCELl
GAZA and MARKOS AVGOUSTIS, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari[ 1] filed by Dante La. Jimenez (petitioner) to challenge
the twin resolutions of the Court of Appeals ( CA) dated November 23, 20062 and June 28, 20073 in
CA-G.R. SP No. 96584, which dismissed the petitioner's petition for certiorari and denied his motion
for reconsideration, respectively.

The Factual Antecedents

The petitioner is the president of Unlad Shipping & Management Corporation, a local manning
agency, while Socrates Antzoulatos, Carmen Alamil, Marceli Gaza, and Markos Avgoustis
(respondents) are some of the listed incorporators of Tsakos Maritime Services, Inc. (TMSI), another
local manning agency.

On August 19, 2003, the petitioner filed a complaint-affidavit4 with the Office of the City Prosecutor of
Mandaluyong City against the respondents for syndicated and large scale illegal recruitment.5 The
petitioner alleged that the respondents falsely represented their stockholdings in TMSI’s articles of
incorporation6 to secure a license to operate as a recruitment agency from the Philippine Overseas
Employment Agency (POEA).

On October 9, 2003, respondents Antzoulatos and Gaza filed their joint counter-affidavit denying the
complaint-affidavit’s allegations.7 Respondents Avgoustis and Alamil did not submit any counter-
affidavit.

In a May 4, 2004 resolution,8 the 3rd Assistant City Prosecutor recommended the filing of an
information for syndicated and large scale illegal recruitment against the respondents. The City
Prosecutor approved his recommendation and filed the corresponding criminal information with the
Regional Trial Court (RTC) of Mandaluyong City (docketed as Criminal Case No. MC04-8514 and
raffled to Branch 212) presided by Judge Rizalina T. Capco-Umali.

Subsequently, in a December 14, 2004 resolution, the City Prosecutor reconsidered the May 4, 2004
resolution and filed a motion with the RTC to withdraw the information.9 The petitioner and
respondents Antzoulatos and Gaza filed their opposition10 and comment to the opposition,
respectively.

In an August 1, 2005 resolution,11 the RTC denied the motion to withdraw information as it found the
existence of probable cause to hold the respondents for trial.12 Thus, the RTC ordered the issuance
of warrants of arrest against the respondents.

On August 26, 2005, respondents Antzoulatos and Gaza filed an omnibus motion for reconsideration
and for deferred enforcement of the warrants of arrest.13 In a September 2, 2005 order,14 the RTC
denied the omnibus motion, reiterating that the trial court is the sole judge on whether a criminal
case should be dismissed or not.

On September 26, 2005, respondent Alamil filed a motion for judicial determination of probable
cause with a request to defer enforcement of the warrants of arrest.15

On September 29, 2005, the petitioner filed his opposition with motion to expunge, contending that
respondent Alamil, being a fugitive from justice, had no standing to seek any relief and that the RTC,
in the August 1, 2005 resolution, already found probable cause to hold the respondents for trial.16

In a September 30, 2005 order,17 the RTC denied respondent Alamil’s motion for being moot and
academic; it ruled that it had already found probable cause against the respondents in the August 1,
2005 resolution, which it affirmed in the September 2, 2005 order.

On October 10, 2005, respondent Alamil moved for reconsideration and for the inhibition of Judge
Capco-Umali, for being biased or partial.18 On October 25, 2005, the petitioner filed an opposition with
a motion to expunge, reiterating that respondent Alamil had no standing to seek relief from the
RTC.19

In a January 4, 2006 order,20 Judge Capco-Umali voluntarily inhibited herself from the case and did
not resolve respondent Alamil’s motion for reconsideration and the petitioner’s motion to expunge.
The case was later re-raffled to Branch 214, presided by Judge Edwin D. Sorongon.

The RTC Rulings

In its March 8, 2006 order,21 the RTC granted respondent Alamil’s motion for reconsideration. It
treated respondent Alamil’s motion for judicial determination as a motion to dismiss for lack of
probable cause. It found: (1) no evidence on record to indicate that the respondents gave any false
information to secure a license to operate as a recruitment agency from the POEA; and (2) that
respondent Alamil voluntarily submitted to the RTC’s jurisdiction through the filing of pleadings
seeking affirmative relief. Thus, the RTC dismissed the case, and set aside the earlier issued
warrants of arrest.

On April 3, 2006, the petitioner moved for reconsideration, stressing the existence of probable cause
to prosecute the respondents and that respondent Alamil had no standing to seek any relief from the
RTC.22

On April 26, 2006, respondent Alamil moved to expunge the motion for being a prohibited pleading
since the motion did not have the public prosecutor’s conformity.23

In its May 10, 2006 order,24 the RTC denied the petitioner’s motion for reconsideration, finding that
the petitioner merely reiterated arguments in issues that had been finally decided. The RTC ordered
the motion expunged from the records since the motion did not have the public prosecutor’s
conformity.

On May 19, 2006, the petitioner filed a notice of appeal.25

On May 30, 2006, respondent Alamil moved to expunge the petitioner’s notice of appeal since the
public prosecutor did not authorize the appeal and the petitioner had no civil interest in the case.26

On June 27, 2006, the petitioner filed his comment to the motion to expunge, claiming that, as the
offended party, he has the right to appeal the RTC order dismissing the case; the respondents’
fraudulent acts in forming TMSI greatly prejudiced him.27

In its August 7, 2006 joint order,28 the RTC denied the petitioner’s notice of appeal since the petitioner
filed it without the conformity of the Solicitor General, who is mandated to represent the People of
the Philippines in criminal actions appealed to the CA. Thus, the RTC ordered the notice of appeal
expunged from the records.

On October 18, 2006, the petitioner elevated his case to the CA via a Rule 65 petition
for certiorari assailing the RTC’s March 8, 2006, May 10, 2006, and August 7, 2006 orders.

The CA Ruling

In its November 23, 2006 resolution,29 the CA dismissed outright the petitioner’s Rule 65 petition for
lack of legal personality to file the petition on behalf of the People of the Philippines. It noted that
only the Office of the Solicitor General (OSG) has the legal personality to represent the People,
under Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. It also held that
the petitioner was not the real party in interest to institute the case, him not being a victim of the
crime charged to the respondents, but a mere competitor in their recruitment business. The CA
denied30 the motion for reconsideration31 that followed.

The Petition

The petitioner argues that he has a legal standing to assail the dismissal of the criminal case since
he is the private complainant and a real party in interest who had been directly damaged and
prejudiced by the respondents’ illegal acts; respondent Alamil has no legal standing to seek any
relief from the RTC since she is a fugitive from justice.

The Case for the Respondents

The respondents32 submit that the petitioner lacks a legal standing to assail the dismissal of the
criminal case since the power to prosecute lies solely with the State, acting through a public
prosecutor; the petitioner acted independently and without the authority of a public prosecutor in the
prosecution and appeal of the case.

The Issue

The case presents to us the issue of whether the CA committed a reversible error in dismissing
outright the petitioner’s Rule 65 petition for certiorari for lack of legal personality to file the petition on
behalf of the People of the Philippines.

Our Ruling
The petition lacks merit.

The petitioner has no legal personality to assail the dismissal of the criminal case

It is well-settled that "every action must be prosecuted or defended in the name of the real party in
interest[,]" "who stands to be benefited or injured by the judgment in the suit, or by the party entitled
to the avails of the suit."33Interest means material interest or an interest in issue to be affected by the
decree or judgment of the case, as distinguished from mere interest in the question involved.34 By
real interest is meant a present substantial interest, as distinguished from a mere expectancy, or a
future, contingent, subordinate or consequential interest.35 When the plaintiff or the defendant is not a
real party in interest, the suit is dismissible.36

Procedural law basically mandates that "[a]ll criminal actions commenced by complaint or by
information shall be prosecuted under the direction and control of a public prosecutor."37 In appeals of
criminal cases before the CA and before this Court, the OSG is the appellate counsel of the People,
pursuant to Section 35(1), Chapter 12, Title III, Book IV of the 1987 Administrative Code. This
section explicitly provides:

SEC. 35. Powers and Functions. — The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. . . . It shall have the
following specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court and Court of
Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is a party. (emphasis added)

The People is the real party in interest in a criminal case and only the OSG can represent the People
in criminal proceedings pending in the CA or in this Court. This ruling has been repeatedly stressed
in several cases38 and continues to be the controlling doctrine.

While there may be rare occasions when the offended party may be allowed to pursue the criminal
action on his own behalf39 (as when there is a denial of due process), this exceptional circumstance
does not apply in the present case.

In this case, the petitioner has no legal personality to assail the dismissal of the criminal case since
the main issue raised by the petitioner involved the criminal aspect of the case, i.e., the existence of
probable cause. The petitioner did not appeal to protect his alleged pecuniary interest as an
offended party of the crime, but to cause the reinstatement of the criminal action against the
respondents. This involves the right to prosecute which pertains exclusively to the People, as
represented by the OSG.40

Respondent Alamil voluntarily submitted to the RTC’s jurisdiction

As a rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the
court. Filing pleadings seeking affirmative relief constitutes voluntary appearance, and the
consequent jurisdiction of one's person to the jurisdiction of the court.41
Thus, by filing several motions before the RTC seeking the dismissal of the criminal case,
respondent Alamil voluntarily submitted to the jurisdiction of the RTC. Custody of the law is not
required for the adjudication of reliefs other than an application for bail.42

WHEREFORE, we hereby DENY the appeal. The twin resolutions of the CoUJt of Appeals dated
November 23, 2006 and June 28, 2007 in CAG. R. SP No. 96584 are AFFIRMED. Costs against the
petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Acting Chief Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Acting Chief Justice
RULE 110 B: PEOPLE VS VALDEZ, 663 SCRA 272

Republic of the Philippines

Supreme Court
Manila

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 175602

Plaintiff-Appellee,

Present:

CORONA, C.J., Chairperson,

- versus - LEONARDO-DE CASTRO,

BERSAMIN,

DEL CASTILLO, and

VILLARAMA, JR., JJ.

PO2 EDUARDO VALDEZ and Promulgated:

EDWIN VALDEZ,

Accused-Appellants.
January 18, 2012

x-----------------------------------------------------------------------------------------x
 DECISION

BERSAMIN, J.:

The sufficiency of the allegations of the facts and circumstances constituting the
elements of the crime charged is crucial in every criminal prosecution because of the
ever-present obligation of the State to duly inform the accused of the nature and cause
of the accusation.

The accused were tried for and convicted of three counts of murder on January
20, 2005 by the Regional Trial Court (RTC), Branch 86, in Quezon City. They were
penalized with reclusion perpetua for each count, and ordered to pay to the heirs of
each victim P93,000.00 as actual damages, P50,000.00 as civil indemnity,
and P50,000.00 as moral damages.

On appeal, the Court of Appeals (CA) upheld the RTC on July 18, 2006,
subject to the modification that each accused pay to the heirs of each
victim P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as
temperate damages, and P25,000.00 as exemplary damages, plus costs of suit. 1

The accused came to the Court to seek acquittal. On May 9, 2007, however,
accused Edwin Valdez filed a motion to withdraw appeal, which the Court granted on
October 10, 2007, thereby deeming Edwin’s appeal closed and terminated. Hence, the
2

Court hereby resolves only the appeal of PO2 Eduardo Valdez.

 Antecedents

The Office of the City Prosecutor of Quezon City charged the two accused in
the RTC with three counts of murder for the killing of Ferdinand Sayson, Moises
Sayson, Jr., and Joselito Sayson, alleging:

Criminal Case No. 00-90718

That on or about the 1st day of March, 2000, in Quezon City,

Philippines, the above-named accused conspiring together, confederating
with and mutually helping each other, with intent to kill, qualified with
treachery, evident premeditation and abuse of superior strength did, then
and there, willfully, unlawfully and feloniously, assault, attack and
employ personal violence upon the person of one FERDINAND
SAYSON Y DABOCOL by then and there shooting him with a gun,
hitting him on his head, thereby inflicting upon him serious and mortal
wound which was the direct and immediate cause of his death, to the
damage and prejudice of the heirs of the said FERDINAND SAYSON Y
DABOCOL.

CONTRARY TO LAW. 3

Criminal Case No. 00-90719

 That on or about the 1st day of March, 2000, in Quezon City,
Philippines, the above-named accused conspiring together, confederating
with and mutually helping each other, with intent to kill, qualified with
treachery, evident premeditation and abuse of superior strength did, then
and there, willfully, unlawfully and feloniously, assault, attack and
employ personal violence upon the person of one MOISES SAYSON,
JR. Y DABOCOL by then and there shooting him several times with a
gun, hitting him on his face and chest, thereby inflicting upon him
serious and mortal wound which was the direct and immediate cause of
his death, to the damage and prejudice of the heirs of the said MOISES
SAYSON, JR. Y DABOCOL.

CONTRARY TO LAW. 4

Criminal Case No. 00-90720

That on or about the 1st day of March, 2000, in Quezon City,

Philippines, the above-named accused conspiring together, confederating
with and mutually helping each other, with intent to kill, qualified with
treachery, evident premeditation and abuse of superior strength did, then
and there, willfully, unlawfully and feloniously, assault, attack and
employ personal violence upon the person of one JOSELITO SAYSON
Y DABOCOL by then and there shooting him with a gun, hitting him on
his back, thereby inflicting upon him serious and mortal wound which
was the direct and immediate cause of his death, to the damage and
prejudice of the heirs of the said JOSELITO SAYSON Y DABOCOL.

CONTRARY TO LAW. 5
 The Office of the Solicitor General (OSG) summarized the State’s evidence of
guilt as follows:

On March 1, 2000, at around 8:00 o’clock in the evening, Estrella

Sayson, (Estrella) was at the canteen (which also includes a jai
alai betting station) located at 77 Corregidor Street, Bago Bantay,
Quezon City. Estrella was preparing for the celebration of the birthday of
her second husband, Wilfredo Lladones, which was held later in the
evening. Estrella’s son, the deceased Moises Sayson, a former
policeman, and his wife, Susan Sayson (Susan) owned the said canteen
and managed the betting station. At about 9:00 o’clock in the evening,
Estrella’s other sons Joselito Sayson (Joselito) and Ferdinand Sayson
(Ferdinand) arrived at the canteen to greet their stepfather. Estrella’s
family and other visitors ate and enjoyed themselves at the party (pp. 3-
5, TSN, November 29, 2000; pp. 3-6, TSN, February 6, 2001; pp. 3-4,
TSN, July 31, 2001).

At about 10:00 o’clock in the evening, the celebration was

interrupted with the arrival of Eduardo and Edwin, who alighted from a
motorcycle in front of the jai alai fronton. Eduardo and Edwin asked
the jai alai teller, Jonathan Rubio (Jonathan), to come out. Jonathan was
then attending to customers who were buying jai alai tickets. Moises
approached Eduardo and Edwin and tried to reason with them. Estrella
saw Eduardo and Edwin armed with guns. She tried to prevent Moises
from going near Edwin and Eduardo. Moises did not heed his mother’s
warning. He went out and advised Eduardo and Edwin not to force
Jonathan to go out of the fronton. Estrella then heard one of the accused-
appellants threaten Moises with the words “Gusto mo unahin na kita?”
Moises replied “huwag.” Successive shots were thereafter heard. Moises
fell and was continuously fired upon even after he was sprawled on the
ground. Ferdinand immediately approached the scene to help his brother
Moises. Ferdinand, however was shot on the left temporal portion of his
head and fell. Somebody told Joselito to run away, but he was hit at the
 back while running. Joselito fell on a burger machine (pp. 7-11, TSN,
November 29, 2000; pp. 6-10, TSN, February 6, 2001; pp. 5-10, TSN,
July 31, 2001; pp. 2-6, September 5, 2001).

After shooting the Sayson brothers, Eduardo and Edwin escaped

from the scene of the crime (p. 10, TSN, February 6, 2001). 6

In turn, the appellant’s brief filed by the Public Attorney’s Office (PAO)
rendered the version of the accused, to wit:

xxx [A]t about 10:00 o’clock in the evening, Heidi dela Cruz (a
barbecue vendor) and Noel Valad-on (a tricycle driver) saw accused
Edwin Valdez alight from a bus. The latter bought P100.00 worth of
barbecue from Heidi then proceeded towards home. He was walking
along Corregidor Street when Heidi saw Jun Sayson (Moises), then
holding a gun, block his (Edwin’s) way. Jun Sayson poked a gun at
accused Edwin, shouting, ‘Putang-ina mo, papatayin kita’. The latter
raised both his hands and said ‘Wag kuya Jun, maawa ka.’

Accused Eduardo Valdez (a policeman), then carrying his 6-year

old child, was walking when his way was likewise blocked but this time,
by the siblings Joselito and Ferdinand as well as their stepfather. Joselito
twisted one of his (Eduardo’s) hands at his back while his (Joseltio’s)
stepfather held the other. Ferdinand fired a gun but accused Eduardo was
able to evade. Joselito, who was positioned behind Eduardo, was hit. He
slumped and bled. He asked Heidi to inform his family that he was hit.
Heidi ran away. She saw Jun (Moises) and accused Edwin grappling.
Thereafter, she heard gunshots.

Accused Eduardo ducked during the firing. He pretended to be

dead. Ferdinand stopped firing. Accused Eduardo’s son approached him
crying. Accused thereafter, brought his son home, took his service
 firearm and on his way back to the scene of the incident when he met
General Jesus Almadin, his commanding officer (CO). He reported the
incident and sought for advice. He was told to take a rest and go back on
(sic) the following day. He accompanied his CO to Camp Crame. He
surrendered his firearm to Sr./Insp. Rodolfo Araza of the CIU. Accused
Edwin Valdez likewise surrendered (TSN dated 05 February 2003; pp.
3-9; 12 March 2003, pp. 2-16; 11 August 2003, pp. 2-18, 1 September
2003, pp. 3-10; 15 October 2003, pp. 2-8; 03 December 2003, pp. 2-4;
18 February 2004, pp. 2-9; 24 March 2004, pp. 3-9; 10 April 2004, pp.
2-7; 07 June 2004, pp. 2-25).7

The RTC convicted the two accused of three counts of murder and sentenced
them to suffer reclusion perpetua for each count of murder. 8

On appeal, the CA affirmed the convictions. 9

Issues

In this appeal, PO2 Valdez assails the credibility of the State’s witnesses by
pointing to inconsistencies and weaknesses in their testimonies; challenges the finding
of conspiracy between the accused; and contends that the State did not establish the
qualifying circumstance of treachery. 10

Ruling

The Court affirms the convictions, but holds PO2 Valdez guilty only of three
counts of homicide due to the failure of the informations to allege the facts and
circumstances constituting treachery.
 First of all, PO2 Valdez insists that the State’s witnesses (Susan Sayson,
Marites Sayson and Estrella Sayson) did not really see the events as they transpired;
and that they wrongly identified the two accused as the persons who had shot and
killed the victims; and that the victims were themselves the aggressors.

The CA rejected PO2 Valdez’s insistence, holding thus:

In their Brief, the accused-appellants desperately attempted to

discredit the testimonies of witnesses Susan, Marites and Estrella. They
claimed that a perusal of Estrella’s testimony would cast doubt on her
statement that she actually witnessed the shooting incident. The accused-
appellants claimed that Estrella Sayson did not actually see who
allegedly threatened her son Moises with the words “Gusto mo unahin
na kita?” The accused-appellants also claimed that Estrella also failed to
see who shot Moises. They likewise assailed the testimonies of Susan
and Marites as being incredible. They said that Susan testified that she
was in a state of shock after the incident and that she could not speak;
yet she was still able to give her statement on the same day the incident
allegedly happened. The accused-appellants also said that Marites
testified that she was only about five (5) meters away from them
(accused-appellants) when they alighted from their motorcycle; but that,
“interestingly,” she only learned from her husband Joselito that the
accused-appellants were looking for a certain Jonathan.

We are not persuaded. In her testimony, Estrella satisfactorily

explained her purported failure to see who between the accused-
appellants threatened Moises with the words “Gusto mo unahin kita?”
and who shot her son Moises, by pointing out that she was then facing
Moises because she was preventing him from approaching the accused-
appellants, who were armed with short firearms. Estrella categorically
stated that she saw the accused-appellants alight from their motorcycle
on March 1, 2000. She could not have been mistaken about the identity
of the accused-appellants for the simple reason that they are her
 neighbors and that their (the accused-appellants’) father is her
“cumpadre.” When the incident happened, the accused-appellants were
about eight (8) to ten (10) meters away from where she and her son
Moises were standing. She also saw with her own eyes how her son
Moises fell after she heard successive bursts of gunshots (approximately
[9] shots) coming from where the accused-appellants were standing. 11

Considering that the CA thereby affirmed the trial court’s findings of fact, its
calibration of the testimonies of witnesses and its assessment of their probative
weight, as well as its conclusions, the Court accords high respect, if not conclusive
effect, to the CA’s findings. The justification for this is that trial court was in the best
12

position to assess the credibility of witnesses by virtue of its firsthand observation of

the demeanor, conduct and attitude of the witnesses under grilling examination. The
only time when a reviewing court was not bound by the trial court’s assessment of
credibility arises upon a showing of a fact or circumstance of weight and influence
that was overlooked and, if considered, could affect the outcome of the case. No such 13

fact or circumstance has been brought to the Court’s attention.

It is not trite to remind that a truth-telling witness is not always expected to

give an error-free testimony because of the lapse of time and the treachery of human
memory; and that inaccuracies noted in testimony may even suggest that the witness
is telling the truth and has not been rehearsed. To properly appreciate the worth of
14

testimony, therefore, the courts do not resort to the individual words or phrases alone
but seek out the whole impression or effect of what has been said and done. 15

Secondly, PO2 Valdez argues that the three victims were themselves the
aggressors who had attacked to kill him and his brother. He narrated during the trial
that he dodged the bullet fired from the gun of Ferdinand (one of the victims), causing
the bullet to fatally hit Joselito (another victim); that he played dead to avoid being
shot at again, and walked away with his terrified son only after the way was clear for
them to leave; and that he heard gunshots while Edwin and Jun (the third victim)
grappled for control of a gun, and assumed that the gunshots had hit and killed Jun
and Ferdinand. 16

The argument of PO2 Valdez is bereft of factual merit.

It is fundamental that the question as to who between the accused and the
victim was the unlawful aggressor is a question of fact addressed to the trial court for
determination based on the evidence on record. The records show that the version of
17

PO2 Valdez was contrary to the established facts and circumstances showing that he
and Edwin, then armed with short firearms, had gone to the jai alai betting station of
Moises to confront Jonathan Rubio, the teller of the betting booth then busily
attending to bettors inside the booth; that because the accused were calling to Rubio to
come out of the booth, Moises approached to pacify them, but one of them threatened
Moises: Gusto mo unahin na kita?; that immediately after Moises replied: Huwag!,
PO2 Valdez fired several shots at Moises, causing him to fall to the ground; that PO2
Valdez continued firing at the fallen Moises; that Ferdinand (another victim) rushed to
aid Moises, his brother, but Edwin shot Ferdinand in the head, spilling his brains; that
somebody shouted to Joselito (the third victim) to run; that Edwin also shot Joselito
twice in the back; and that Joselito fell on a burger machine. The shots fired at the
three victims were apparently fired from short distances.

The testimonial accounts of the State’s witnesses entirely jibed with the
physical evidence. Specifically, the medico-legal evidence showed that Ferdinand had
a gunshot wound in the head; that two gunshot wounds entered Joselito’s back and
18

the right side of his neck; and that Moises suffered a gunshot wound in the head and
19

four gunshot wounds in the chest. Also, Dr. Wilfredo Tierra of the NBI Medico-Legal
20

Office opined that the presence of marginal abrasions at the points of entry indicated
that the gunshot wounds were inflicted at close range. Given that physical evidence
21

was of the highest order and spoke the truth more eloquently than all witnesses put
together, the congruence between the testimonial recollections and the physical
22

evidence rendered the findings adverse to PO2 Valdez and Edwin conclusive.
 Thirdly, conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit the felony. Proof of the
23

actual agreement to commit the crime need not be direct because conspiracy may be
implied or inferred from their acts. Herein, both lower courts deduced the conspiracy
24

between the accused from the mode and manner in which they perpetrated the
killings. We are satisfied that their deduction was warranted.

Based on the foregoing, PO2 Valdez cannot now avoid criminal responsibility
for the fatal shooting by Edwin of Ferdinand and Joselito. Both accused were
convincingly shown to have acted in concert to achieve a common purpose of
assaulting their unarmed victims with their guns. Their acting in concert was manifest
not only from their going together to the betting station on board a single motorcycle,
but also from their joint attack that PO2 Valdez commenced by firing successive shots
at Moises and immediately followed by Edwin’s shooting of Ferdinand and Joselito
one after the other. It was also significant that they fled together on board the same
motorcycle as soon as they had achieved their common purpose.

To be a conspirator, one did not have to participate in every detail of the

execution; neither did he have to know the exact part performed by his co-conspirator
in the execution of the criminal acts. Accordingly, the existence of the conspiracy
25

between PO2 Valdez and Edwin was properly inferred and proved through their acts
that were indicative of their common purpose and community of interest. 26

And, fourthly, it is unavoidable for the Court to pronounce PO2 Valdez guilty
of three homicides, instead of three murders, on account of the informations not
sufficiently alleging the attendance of treachery.

Treachery is the employment of means, methods, or forms in the execution of

any of the crimes against persons which tend to directly and specially insure its
execution, without risk to the offending party arising from the defense which the
offended party might make. It encompasses a wide variety of actions and attendant
27

circumstances, the appreciation of which is particular to a crime committed.

Corollarily, the defense against the appreciation of a circumstance as aggravating or
qualifying is also varied and dependent on each particular instance. Such variety
generates the actual need for the State to specifically aver the factual circumstances or
particular acts that constitute the criminal conduct or that qualify or aggravate the
liability for the crime in the interest of affording the accused sufficient notice to
defend himself.

It cannot be otherwise, for, indeed, the real nature of the criminal charge is determined
not from the caption or preamble of the information, or from the specification of the
provision of law alleged to have been violated, which are mere conclusions of law, but
by the actual recital of the facts in the complaint or information. In People v.
28

Dimaano, the Court elaborated:

29

For complaint or information to be sufficient, it must state the name

of the accused; the designation of the offense given by the statute; the
acts or omissions complained of as constituting the offense; the name of
the offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed. What is
controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated,
these being mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts therein recited.
The acts or omissions complained of must be alleged 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. No information for a crime will be sufficient if it does
not accurately and clearly allege the elements of the crime
charged. Every element of the offense must be stated in the
information. What facts and circumstances are necessary to be
included therein must be determined by reference to the definitions
and essentials of the specified crimes. The requirement of alleging
the elements of a crime in the information is to inform the accused of
 the nature of the accusation against him so as to enable him to
suitably prepare his defense. The presumption is that the accused
has no independent knowledge of the facts that constitute the
offense. [emphasis supplied]

The averments of the informations to the effect that the two accused “with
intent to kill, qualified with treachery, evident premeditation and abuse of superior
strength did xxx assault, attack and employ personal violence upon” the victims “by
then and there shooting [them] with a gun, hitting [them]” on various parts of their
bodies “which [were] the direct and immediate cause of [their] death[s]” did not
sufficiently set forth the facts and circumstances describing how treachery attended
each of the killings. It should not be difficult to see that merely averring the killing of
a person by shooting him with a gun, without more, did not show how the execution
of the crime was directly and specially ensured without risk to the accused from the
defense that the victim might make. Indeed, the use of the gun as an instrument to kill
was not per se treachery, for there are other instruments that could serve the same
lethal purpose. Nor did the use of the term treachery constitute a sufficient averment,
for that term, standing alone, was nothing but a conclusion of law, not an averment of
a fact. In short, the particular acts and circumstances constituting treachery as an
attendant circumstance in murder were missing from the informations.

To discharge its burden of informing him of the charge, the State must specify
in the information the details of the crime and any circumstance that aggravates his
liability for the crime. The requirement of sufficient factual averments is meant to
inform the accused of the nature and cause of the charge against him in order to
enable him to prepare his defense. It emanates from the presumption of innocence in
his favor, pursuant to which he is always presumed to have no independent knowledge
of the details of the crime he is being charged with. To have the facts stated in the
body of the information determine the crime of which he stands charged and for
which he must be tried thoroughly accords with common sense and with the
requirements of plain justice, for, as the Court fittingly said in United States v. Lim
San: 30
 From a legal point of view, and in a very real sense, it is of no concern to the
accused what is the technical name of the crime of which he stands charged. It in
no way aids him in a defense on the merits. xxx. That to which his attention
should be directed, and in which he, above all things else, should be most
interested, are the facts alleged. The real question is not did he commit a
crime given in the law some technical and specific name, but did he perform
the acts alleged in the body of the information in the manner therein set
forth. If he did, it is of no consequence to him, either as a matter of
procedure or of substantive right, how the law denominates the crime which
those acts constitute. The designation of the crime by name in the caption of
the information from the facts alleged in the body of that pleading is a
conclusion of law made by the fiscal. In the designation of the crime the
accused never has a real interest until the trial has ended. For his full and
complete defense he need not know the name of the crime at all. It is of no
consequence whatever for the protection of his substantial rights. The real
and important question to him is, “Did you perform the acts alleged in the
manner alleged?” not “Did you commit a crime named murder.” If he
performed the acts alleged, in the manner stated, the law determines what
the name of the crime is and fixes the penalty therefor. It is the province of
the court alone to say what the crime is or what it is named. xxx. (emphasis
supplied)

A practical consequence of the non-allegation of a detail that aggravates his

liability is to prohibit the introduction or consideration against the accused of evidence
that tends to establish that detail. The allegations in the information are controlling in
the ultimate analysis. Thus, when there is a variance between the offense charged in
the information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the offense
proved included in the offense charged, or of the offense charged included in the
offense proved. In that regard, an offense charged necessarily includes the offense
31

proved when some of the essential elements or ingredients of the former, as alleged in
the information, constitute the latter; an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form part of
those constituting the latter.32

We now fix the penalty for each count of homicide.

 Pursuant to Article 249 of the Revised Penal Code, the penalty for homicide
is reclusion temporal. There being no circumstances modifying criminal liability, the
33

penalty is applied in its medium period (i.e., 14 years, 8 months and 1 day to 17 years
and 4 months). Under the Indeterminate Sentence Law, the minimum of the
indeterminate sentence is taken from prision mayor, and the maximum from the
medium period of reclusion temporal. Hence, the Court imposes the indeterminate
sentence of 10 years of prision mayor as minimum to 17 years of reclusion
temporal as maximum for each count of homicide.

WHEREFORE, the decision of the Court of Appeals promulgated on July 18,

2006 is MODIFIED by finding PO2 Eduardo Valdez guilty beyond reasonable doubt
of three counts of HOMICIDE, and sentencing him to suffer for each count the
indeterminate sentence of 10 years of prision mayor as minimum to 17 years
of reclusion temporal as maximum; and to pay to the respective heirs of the late
Ferdinand Sayson, Moises Sayson, Jr., and Joselito Sayson the amounts of P50,000.00
as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate
damages.

The accused shall pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN

Associate Justice
 WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

RULE 110 B: MIGUEL VS SANDIGANBAYAN, 675 SCRA 560

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

FERNANDO Q. MIGUEL, G.R. No. 172035

Petitioner,

Present:

CARPIO, J., Chairperson,

BRION,

PEREZ,

- versus - SERENO, and

REYES, JJ.

THE HONORABLE Promulgated:

SANDIGANBAYAN,

Respondent. July 4, 2012

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

DECISION

BRION, J.:
Before the Court is a petition for certiorari under Rule 65[1] filed by
Fernando Q. Miguel (petitioner), assailing the January 25, 2006 and March 27,
2006 resolutions[2] of the Sandiganbayan. These resolutions (i) ordered the
petitioners suspension from public office and (ii) denied the petitioners motion
for reconsideration of the suspension order.

THE ANTECEDENT FACTS

On May 29, 1996, then Vice Mayor Mercelita M. Lucido and other local
officials[3] of Koronadal City, South Cotabato filed a letter-complaint with the
Office of the Ombudsman-Mindanao (Ombudsman)[4] charging the petitioner,
among others,[5] with violation of Republic Act (R.A.) No. 3019, in connection with
the consultancy services for the architectural aspect, the engineering design, and
the construction supervision and management of the proposed Koronadal City
public market (project).[6]

In a June 27, 1996 order, the Ombudsman directed the petitioner, among
others, to submit his counter-affidavit. On October 23, 1996, after moving for an
extension, the petitioner filed his counter-affidavit.[7] In its July 29, 1999
resolution, the Ombudsman found probable cause against the petitioner and
some private individuals for violation of R.A. No. 3019 and against the petitioner
alone for Falsification of Public Document under Article 171, par. 4 of the Revised
Penal Code.[8]

On March 1, 2000, the Ombudsman filed the corresponding informations

with the Sandiganbayan.[9] The information for violation of Section 3(e) of R.A. No.
3019 reads:

That on 10 January 1995 or sometime prior or subsequent thereto, in the Municipality

of Koronadal, South Cotabato, Philippines, and within the jurisdiction of this Honorable
Court, the [petitioner], a high ranking public officer in his capacity as former Municipal
Mayor of Koronadal, South Cotabato, and as such while in the performance of his official
functions, committingthe offense in relation to his office, taking advantage of his official
position, conspiring and confederating with the private [individuals] xxx acting with
evident bad faith and manifest partiality, did then and there willfully, unlawfully and
criminally give unwarranted benefits and advantages to said [accused], by inviting them
to participate in the prequalification of consultants to provide the Detailed Architectural
& Engineering Design and Construction Supervision and Management of the proposed
Koronadal Public Market, without causing the publication of said invitation in a
newspaper of general circulation, thereby excluding other consultants from
participating in said prequalification.[10] (Emphases and underscoring added)
 On motions separately filed by two of the petitioners co-accused,[11] the
Sandiganbayan ordered the Office of the Special Prosecutor (OSP) to conduct a
reinvestigation. On August 21, 2000, the petitioner, through counsel, followed
suit and orally moved for a reinvestigation, which the Sandiganbayan likewise
granted. The Sandiganbayan gave the petitioner ten (10) days within which to file
his counter-affidavit with the OSP.[12]

Instead of submitting his counter-affidavit, the petitioner asked[13] the

Sandiganbayan for a thirty-day extension to submit his counter-affidavit. Shortly
before the expiry of the extension requested, the petitioner asked[14] the OSP for
an additional thirty-day period to file his counter-affidavit. Despite the two
extensions asked and granted, the petitioner asked the OSP anew for a twenty-
day extension period.[15]

Despite the extension period asked and given, the petitioner failed to file
his counter-affidavit, prompting Prosecutor Norberto B. Ruiz to declare that the
petitioner had waived his right to submit countervailing evidence (April 25, 2001
resolution). On July 31, 2001, then Ombudsman Aniano Desierto approved the
resolution.[16]

On August 7, 2001, Prosecutor Ruiz asked the Sandiganbayan for the

arraignment and trial of the petitioner and of the other accused private
individuals.[17]

On August 6, 2002, after several extensions sought and granted, the

petitioner filed a Motion to Quash and/or Reinvestigation for the criminal cases
against him. On February 18, 2003, the Sandiganbayan denied the petitioners
motion because of the pending OSP reinvestigation this, despite the OSPs earlier
termination of the reinvestigation for the petitioners continuous failure to submit
his counter-affidavit.[18] The petitioner did not question the denial of his motion.

On November 3, 2004, the petitioner was arraigned; he pleaded not guilty in both
criminal cases.[19]

On April 28, 2005, the OSP filed a Motion to Suspend [the petitioner] Pendente
Lite. On June 27, 2005, the petitioner filed his Vigorous Opposition based on the
obvious and fatal defect of the [i]nformation in failing to allege that the giving of
unwarranted benefits and advantages was done through manifest partiality,
evident bad faith or gross inexcusable negligence.[20]

On January 25, 2006, the Sandiganbayan promulgated the assailed

resolution[21] suspending the petitioner pendente lite

WHEREFORE, PREMISES CONSIDERED, the Prosecutions Motion is GRANTED. As

prayed for, the Court hereby orders the suspension of [the petitioner] from his position
as City Mayor, Koronadal City, South Cotabato, and from any other public position he
now holds. His suspension shall be for a period of ninety (90) days only.[22]

On February 2, 2006, the petitioner moved for reconsideration of his suspension

order and demanded for a pre-suspension hearing.[23] The Sandiganbayan denied
his motion,[24] prompting him to file this certiorari petition to challenge the
validity of his suspension order.
 THE PETITION

The petitioner claims that the Sandiganbayan gravely abused its discretion in
ordering his suspension despite the failure of the information to allege that the
giving of unwarranted benefits and advantages by the petitioner was made
through manifest partiality, evident bad faith or gross inexcusable negligence. He
alleges that the phrases evident bad faith and manifest partiality actually refers
not to him, but to his co-accused,[25] rendering the information fatally defective.

The petitioner bewails the lack of hearing before the issuance of his
suspension order. Citing Luciano, et al. v. Hon. Mariano, etc., et al.,[26] he claims
that [n]owhere in the records of the [case] can [one] see any order or resolution
requiring the [p]etitioner to show cause at a specific date of hearing why he
should not be ordered suspended.[27]For the petitioner, the requirement of a pre-
suspension hearing can only be satisfied if the Sandiganbayan ordered an actual
hearing to settle the defect in the information.

THE OSPS COMMENT

The OSP argues for the sufficiency of the information since all the elements of the
offense under Section 3(b) of R.A. No. 3019 are specifically pleaded by way of
ultimate facts.These elements are:
 1. The petitioner was the Municipal Mayor of Koronadal, South Cotabato
at the time material to the acts complained of;

2. The petitioner acted with manifest partiality and evident bad faith when
he invited only his co-accused private individuals to participate in the
prequalification of consultants for the project instead of publishing it in
a newspaper of general circulation; and

3. The petitioners actions, performed in relation to his office, gave

unwarranted benefits and advantages to his co-accused.[28]

The OSP faults the petitioner for his attempt to mislead the Court on the
sufficiency of the allegations in the information, by conveniently failing to cite the
phrase acting with evident bad faith and manifest partiality when the petitioner
quoted the relevant portions of the information in his petition.

Citing Juan v. People,[29] the OSP argues that while no actual pre-suspension
hearing was conducted, the events preceding the issuance of the suspension
order already satisfied the purpose of conducting a pre-suspension hearing i.e.,
basically, to determine the validity of the information. Here, the petitioner was
afforded his right to preliminary investigation both by the Ombudsman and by the
OSP (when the petitioner moved for a reinvestigation with the Sandiganbayan);
the acts for which the petitioner was charged constitute a violation of R.A. No.
3019 and Title VII, Book II of the Revised Penal Code; and the petitioner already
moved to quash the information, although unsuccessfully, after he had been
declared to have waived his right to submit countervailing evidence in the
reinvestigation by the OSP.[30]

ISSUES

There are only two issues presented for our resolution:

1. Whether the information, charging the petitioner with violation of

Section 3(e) of R.A. No. 3019, is valid; and

2. If it is valid, whether the absence of an actual pre-suspension hearing

renders invalid the suspension order against the petitioner.

THE COURTS RULING

We dismiss the petition for failure to establish any grave abuse of

discretion in the issuance of the assailed resolutions.

The information for violation of R.A. No. 3019 is

valid

In deference to the constitutional right of an accused to be informed of the

nature and the cause of the accusation against him,[31] Section 6, Rule 110 of the
Revised Rules of Criminal Procedure (Rules)[32] requires, inter alia, that the
information shall state the designation of the offense given by the statute and the
acts or omissions imputed which constitute the offense charged. Additionally, the
Rules requires that these acts or omissions and its attendant circumstances must
be stated in ordinary and concise language and in terms sufficient to enable a
person of common understanding to know what offense is being charged
x x x and for the court to pronounce judgment.[33]

The test of the informations sufficiency is whether the crime is described in

intelligible terms and with such particularity with reasonable certainty so that the
accused is duly informed of the offense charged. In particular, whether an
information validly charges an offense depends on whether the material facts
alleged in the complaint or information shall establish the essential elements of
the offense charged as defined in the law. The raison detre of the requirement in
the Rules is to enable the accused to suitably prepare his defense.[34]

In arguing against the validity of the information, the petitioner appears to

go beyond the standard of a person of common understanding in appreciating the
import of the phrase acting with evident bad faith and manifest partiality. A
reading of the information clearly reveals that the phrase acting with evident bad
faith and manifest partiality was merely a continuation of the prior allegation of
the acts of the petitioner, and that he ultimately acted with evident bad faith and
manifest partiality in giving unwarranted benefits and advantages to his co-
accused private individuals. This is what a plain and non-legalistic reading of the
information would yield.

Notably, in his petition, the petitioner would have us believe that this
elemental phrase was actually omitted in the information[35] when, in his reaction
to the OSPs comment, what the petitioner actually disputes is simply the clarity of
the phrases position, in relation with the other averments in the information.
Given the supposed ambiguity of the subject being qualified by the phrase acting
with evident bad faith and manifest partiality, the remedy of the petitioner, if at
all, is merely to move for a bill of particulars and not for the quashal of an
information which sufficiently alleges the elements of the offense charged.[36]

The pre-suspension order is valid

Section 13 of R.A. No. 3019 reads:

Section 13. Suspension and loss of benefits. Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall be suspended from office.
Should he be convicted by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and
to the salaries and benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.

While the suspension of a public officer under this provision is

mandatory,[37] the suspension requires a prior hearing to determine the validity of
the information[38] filed against him, taking into account the serious and far
reaching consequences of a suspension of an elective public official even before
his conviction.[39] The accused public officials right to challenge the validity of the
information before a suspension order may be issued includes the right to
challenge the (i) validity of the criminal proceeding leading to the filing of an
information against him, and (ii) propriety of his prosecution on the ground that
the acts charged do not constitute a violation of R.A. No. 3019 or of the provisions
on bribery of the Revised Penal Code.[40]

In Luciano v. Mariano[41] that the petitioner relied upon, the Court required,
by way of broad guidelines for the lower courts in the exercise of the power of
suspension, that

(c) upon the filing of such information, the trial court should issue an
order with proper notice requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered suspended from office
pursuant to the cited mandatory provisions of the Act. Where either the
prosecution seasonably files a motion for an order of suspension or the
accused in turn files a motion to quash the information or challenges the
validity thereof, such show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly hear the parties at a
hearing held for determining the validity of the information, and thereafter hand
down its ruling, issuing the corresponding order of suspension should it uphold
the validity of the information or withholding such suspension in the contrary
case.

(d) No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against him,
e.g. that he has not been afforded the right of due preliminary investigation; that
the acts for which he stands charged do not constitute a violation of the provisions
of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under section 13 of
the Act; or he may present a motion to quash the information on any of the
grounds provided in Rule 117 of the Rules of Court. (Emphasis supplied)

The petitioner questions the absence of any show cause order issued by the
Sandiganbayan before his suspension in office was ordered. As clear as the day,
however, Luciano considered it unnecessary for the trial court to issue a show
cause order when the motion, seeking the suspension of the accused pendente
lite, has been submitted by the prosecution, as in the present case.

The purpose of the law in requiring a pre-suspension hearing is to determine the

validity of the information so that the trial court can have a basis to either suspend the
accused and proceed with the trial on the merits of the case, withhold the suspension and
dismiss the case, or correct any part of the proceedings that impairs its validity. That
hearing is similar to a challenge to the validity of the information by way of a motion to
quash.[42]

While a pre-suspension hearing is aimed at securing for the accused fair

and adequate opportunity to challenge the validity of the information or the
regularity of the proceedings against him,[43] Luciano likewise emphasizes that no
hard and fast rule exists in regulating its conduct.[44] With the purpose of a pre-
suspension hearing in mind, the absence of an actual hearing alone cannot be
determinative of the validity of a suspension order.

In Bedruz v. Sandiganbayan,[45] the Court considered the opposition of the

accused (to the prosecutions motion to suspend pendente lite) as sufficient to
dispense with the need to actually set the prosecutions motion for hearing. The
same conclusion was reached in Juan v. People,[46] where the Court ruled:

In the case at bar, while there was no pre-suspension hearing held to

determine the validity of the Informations that had been filed against petitioners,
we believe that the numerous pleadings filed for and against them have achieved
the goal of this procedure. The right to due process is satisfied nor just by an oral
hearing but by the filing and the consideration by the court of the parties'
pleadings, memoranda and other position papers.
 Since a pre-suspension hearing is basically a due process requirement,
when an accused public official is given an adequate opportunity to be heard on
his possible defenses against the mandatory suspension under R.A. No. 3019,
then an accused would have no reason to complain that no actual hearing was
conducted.[47] It is well settled that to be heard does not only mean oral
arguments in court; one may be heard also through pleadings. Where opportunity
to be heard, either through oral arguments or pleadings, has been accorded, no
denial of procedural due process exists.[48]

In the present case, the petitioner (i) filed his Vigorous Opposition (to the
OSPs Motion to Suspend Accused Pendente Lite), and after receiving an adverse
ruling from the Sandiganbayan, (ii) moved for reconsideration of the suspension
order issued against him, and (iii) filed a Reply to the OSPs Opposition to his plea
for reconsideration.[49] Given this opportunity, we find that the petitioners
continued demand for the conduct of an actual pre-suspension hearing based on
the same alleged defect in the information,[50] which we have found wanting has
legally nothing to anchor itself on.

Another reason that militates against the petitioners position relates to the
nature of Section 13 of R.A. No. 3019; it is not a penal provision that would call for
a liberal interpretation in favor of the accused public official and a strict
construction against the State.[51] The suspension required under this provision
is not a penalty, as it is not imposed as a result of judicial proceedings; in fact, if
acquitted, the accused official shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during his suspension.[52]

Rather, the suspension under Section 13 of R.A. No. 3019 is a

mere preventive measure[53] that arises from the legal presumption that unless
the accused is suspended, he may frustrate his prosecution or commit further
acts of malfeasance or do both, in the same way that upon a finding that there is
probable cause to believe that a crime has been committed and that the accused
is probably guilty thereof, the law requires the judge to issue a warrant for the
arrest of the accused.[54]

Suspension under R.A. No. 3019 being a mere preventive measure whose
duration shall in no case exceed ninety (90) days,[55] the adequacy of the
opportunity to contest the validity of the information and of the proceedings that
preceded its filing vis--vis the merits of the defenses of the accused cannot be
measured alone by the absence or presence of an actual hearing. An opportunity
to be heard on ones defenses, however unmeritorious it may be, against the
suspension mandated by law equally and sufficiently serves both the due process
right of the accused and the mandatory nature of the suspension required by law.

Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces the principle

enshrined in the Constitution that a public office is a public trust.[56] In light of the
constitutional principle underlying the imposition of preventive suspension of a
public officer charged under a valid information and the nature of this suspension,
the petitioners demand for a trial-type hearing in the present case would only
overwhelmingly frustrate, rather than promote, the orderly and speedy
dispensation of justice.

WHEREFORE, we hereby DISMISS the petition for lack of merit.

SO ORDERED.
 ARTURO D. BRION

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

JOSE PORTUGAL PEREZ MARIA LOURDES P. A. SERENO

Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
RULE 110 B: PEOPLE VS SORIA 685 SCRA 483

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 207815 June 22, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
JOSE SALVADOR a.k.a. "Felix", Accused-Appellant.

DECISION

VILLARAMA, JR., J.:

Before us is an appeal1 from the January 9, 2013 Decision2 of the Court of Appeals (CA) in CA-G.R.
CR No. 34484 which affirmed with modification appellant Jose Salvador's conviction for the crime of
rape as defined under Article 266-A(2)3 of the Revised Penal Code (RPC) in Criminal Case No.
4112.

AAA, BBB4 and CCC are daughters of appellant, a tricycle driver. On February 5, 2009, appellant
was charged with the crime of rape5 against BBB before the Regional Trial Court (RTC), Branch 96,
Baler, Aurora. The Information6read:

[CRIM. CASE NO. 4112 FOR RAPE IN RELATION TO R.A. No. 7610:]

The undersigned Asst. Provincial Prosecutor, upon the sworn complaint of [BBB], a 15 years (sic)
old minor, assisted by her sister [AAA], Ms. Celestina Abellera of the MSWD and PO2 Myra Novilla
of the WCPD of the PNP, Dipaculao, Aurora, accuses Jose Salvador @ Felix of the crime of Rape in
relation to R.A. 7610, committed as follows:

That sometimes (sic) July 2007 and even prior thereto, in their house at Brgy. [XXX], Dipaculao,
Aurora and within the jurisdiction of this Honorable Court, the above named accused, with carnal
lust, force (sic) [BBB] to have sexual intercourse with him by inserting his finger and sexual organ
into her, taking advantage of the latter[’s] weakness, minority and moral ascendancy over the victim,
being her father, feloniously, criminally, unlawfully, illegally had carnal knowledge upon said [BBB],
such bestial act may impaired (sic) or tend to be prejudicial to the development of the child victim.

CONTRARY TO LAW.

Appellant was at the same time charged7 with the crime of acts of lasciviousness against CCC.

On arraignment,8 appellant pleaded not guilty for both crimes. Joint trial ensued after pre-trial. The
prosecution presented the testimonies of BBB, Celestina Abellera, PO3 Myra Novilla and Dr. Arturo
A. Parilla, Jr. as evidence.
BBB9 testified that she executed a Sinumpaang Salaysay10 on July 11, 2007 when she was 15 years
old and in 2nd year high school. BBB cried when she was asked to recount her experience and read
her affidavit. She nonetheless affirmed the contents of her affidavit and identified appellant as the
person who sexually assaulted her. In her affidavit, BBB stated that the appellant, her father,
physically violated her when she was in Grade VI. She said that appellant touched and inserted his
finger in her vagina and that she felt pain. The following day, appellant asked for a massage where
he was only wearing his underwear. At this point BBB stated that appellant raped her inside his
room. When asked why she delayed in reporting the incident, BBB answered that she was afraid
that appellant might kill them because appellant owned a "pamalo" and a gun. On cross-
examination, BBB clarified that when she said that appellant raped her, appellant was not actually
able to insert his penis in her vagina.

Abellera, the Municipal Social Welfare Officer testified that she aided PO3 Novilla in taking the
statements of BBB and CCC. She affirmed that both BBB and CCC were minors and presented the
certified true copies of their birth certificates11 issued by the local civil registrar. She conducted further
interview for a social case study report.12

PO3 Novilla, Women and Children Protection Desk Officer of the Philippine National Police,
Dipaculao, Aurora, stated that she took and recorded the sworn statements of BBB and CCC. When
the court clarified AAA’s role in the whole proceeding, PO3 Novilla said that AAA filed a statement
with the Department of Social Welfare and Development and with the police that she had also been
raped by appellant and begot a child. AAA however for her own reasons did not file charges against
appellant.13

Dr. Parilla, Jr., Municipal Health Officer of Dipaculao, Aurora, testified that he conducted the physical
examination14of BBB and consequently issued a Medico-Legal Report15 where he found "no evident
injury at the time of exam" nor was there any discharge found.16 On the lower portion of the report, he
noted that the "medical evaluation does not exclude sexual abuse".17

The defense presented appellant as its lone witness. Appellant claimed that, while in prison, his
daughter AAA came to visit him and confided that the complaints of BBB and CCC were fabrications.
Appellant posited that AAA urged her sisters to file false complaints against him to extort money
from him in order to fund her husband’s overseas job application. He also said that AAA took
particular advantage of BBB’s resentment against him because of his strict attitude towards dating.

In its July 22, 2011 Decision,18 the RTC found appellant guilty of rape by sexual assault but acquitted
him of the crime of acts of lasciviousness. The RTC gave credence to BBB’s testimony because it
was delivered in a categorical, straightforward, spontaneous and frank manner. On the other hand, it
noted that appellant’s defense was unsupported by evidence. It also stated that while the medico-
legal report did not contain any finding of injury, the same is not necessary to prove the commission
of rape. There being uncertainty of whether there was actual touching of the penis to the labia, the
RTC said that the crime committed was only sexual assault under Article 266-A, paragraph 2 of the
RPC as amended, thus:

WHEREFORE, above premises considered, the Court hereby renders judgment as follows:

1. For failure of the prosecution to establish the guilt of accused Jose Salvador @ "Felix",
with the required quantum of evidence in Criminal CaseNo. 4113, the Court hereby
ACQUITShim of the crime of Acts of Lasciviousness; and

2. Finding accused JOSE SALVADOR @ "Felix" GUILTY beyond reasonable doubt in

Criminal Case No. 4112 for RAPE defined under Article 266-A, paragraph 2 (sexual assault)
 and punished under 266-B of the Revised Penal Code, the Court hereby sentences him to
suffer the indeterminate penalty of nine (9) years of prision mayor, as minimum, to fourteen
(14) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal
medium, as maximum, and to pay [BBB] the amount of [P]50,000.00 as civil indemnity,
[P]50,000.00 as moral damages, and [P]25,000.00 as exemplary damages.

SO ORDERED.19

On appeal, the CA affirmed with modification the RTC’s July 22, 2011 Decision.20 The CA did not find
any error in the RTC’s appreciation of the facts and circumstances of the case since "exactness,
detailedness and flawlessness [of] recollection"21 cannot be imposed on minor victims. Moreover, the
CA stated that appellant’s defense of denial cannot overcome BBB’s affirmative and categorical
declarations of his culpability. It, however, modified the penalty pursuant to Article 266-B22 of the
RPC.

Since it was established that appellant was BBB’s father and that BBB was below 18 years of age,
the CA concluded that the crime committed was qualified rape. Consequently, the CA increased the
penalty imposed as well as the award of damages. The CA ruled:

WHEREFORE, in light of the foregoing, the instant appeal is DENIED. The July 22, 2011 Joint
Decision of the Regional Trial Court, Branch 96, Baler, Aurora in CRIM. CASE No. 4112, finding the
herein appellant Jose Salvador a.k.a. "Felix" guilty beyond reasonable doubt of rape committed
against [BBB], is hereby AFFIRMED with the MODIFICATIONS that the penalty to be imposed upon
him must be reclusion perpetua with no eligibility of parole and the award of civil indemnity is
increased to ₱75,000.00. No costs.

SO ORDERED.23

Hence, this appeal.

The lone issue for our consideration is whether appellant’s guilt was proven beyond reasonable
doubt.

Appellant contests the finding of guilt beyond reasonable doubt by the RTC and CA contending that
the prosecution failed to prove the elements of the crime of rape. Moreover, he states that the
witnesses presented gave inconsistent testimonies. Lastly, appellant reiterates that the medico-legal
report does not support the finding of rape.

We dismiss the appeal but modify the penalty imposed.

EVALUATION OF THE CREDIBILITY OF WITNESSES

IS BEST LEFT TO THE TRIAL COURTS

This Court has reiterated that the credibility of witnesses is a question best addressed by the trial
court because of its opportunity to observe their demeanor while testifying on the stand: an
opportunity denied to the appellate courts.24 Absent any substantial reason to justify the reversal of
the trial court’s assessment and conclusion, the reviewing court is generally bound by the former’s
findings, especially when no significant fact nor circumstance is shown to have been overlooked or
disregarded which when considered could affect the outcome of the case.25 The rule is strictly
applied when the appellate court affirms the finding of the lower court.
This Court has acknowledged that it is difficult to have corroborating testimonies in rape cases since
in majority of the cases only the offended party’s testimony is available. The Court has affirmed a
conviction of rape as long as it is supported by a conclusive, logical and probable testimony by the
offended party.26

Here, BBB affirmed her Sinumpaang Salaysayin open court. There she narrated what started out as
innocent teasing, escalated into a situation where appellant, her father, inserted his finger in her
vagina. She stated that:

04. T: Maaari mo bang isalaysay ang buong pangyayari sa sinasabi mong panghahalay sa iyo ng
iyong tatay na si JOSE SALVADOR @FELIX.

S: Ganito [po] yon, noong una binibiro-biro po ako ni tatay FELIX sa pamamagitan ng paghihihipo
niyasa aking pepe (vagina) at suso (breast). Pagkatapos ay nagpapahilot na siya sa akin simula sa
kamay hanggang sa katawan nanakabrief o nakashorts. Pagkatapos ay sinasabihan na niyaako na
ipapasok na ang daliri niya sa ari ko at sabi ko ay hwag pero ipinasok na niya at umiiyak ako at
nasaktan ako at hindi ko kaya. Pagkatapos ng ilang araw ay nagpahilot uli siya at doon na [nangyari]
ang unang paghalay niya sa akin sa [loob] ng kwarto niya. Nasaktan ako at umiiyak ako at sinabi
nya na huli na iyon. Pero naulit ng maraming beses sa tuwing hapon kapag nasa biyahe ang aking
ina na si MARINA. Noong dumating ang aking ate na si [AAA] ay pinagtapat niya ako kung ano ang
ginagawa ni Tatay FELIX sa akin ay nagsabi na ako sa kanya na ako ay hinahalay na ni tatay ng
maraming beses.27

On cross-examination, BBB stated categorically what appellant had done to her. She recounted her
experience:

ATTY. TORREGOSA

Can you recall how did he do that to you?

A He placed his finger into my vagina, Ma’am.

THE COURT:

And thereafter, what else did he do to you?

A After that, no more, Your Honor.

THE COURT:

You mean to say, he did not place his penis into your vagina?

A Yes, Your Honor.

THE COURT:

How come you said awhile ago, and in fact it was stated in your affidavit that at first, your father
placed his fingers into your vagina and thereafter he raped you many times. When you said
"hinalay", did he place his penis into your vagina? Tell us the truth?

A He did not insert his penis, but he just "itinutok" (pointed) his penis into my vagina, Your Honor.
THE COURT:

You mean to say his penis was placed into your vagina although it was not inserted?

A Yes, Your Honor.28

The appellant’s only defense was to deny that he had sexually abused his daughter. This Court has
often stated that to be believed, denial must be buttressed by strong evidence of non-culpability
otherwise, it is purely self-serving and without merit.29 Here, appellant interposes an extortion
scheme masterminded by his eldest daughter, AAA. However, he did not present any evidence to
support his contention. Thus, in the face of a categorical testimony by BBB, appellant’s defense of
denial must fail absent any evidence of his non-culpability.

CRIME COMMITTED WAS RAPE BY SEXUAL ASSAULT

This Court has stated that under Article 266-A of the RPC there are two ways by which the crime of
rape may be committed: by sexual intercourse or by sexual assault.30

Rape by sexual intercourse is defined under Article 266-A(1) where it is committed by a man who
shall have carnal knowledge with a woman under a certain set of circumstances enumerated in the
provision. When a person is found guilty of rape by sexual intercourse, the perpetrator is ordinarily
punished by reclusion perpetua.31

Rape by sexual assault, on the other hand, is committed by any person who, under the same set of
circumstances in Article 266-A(1), inserts his penis into another person’s mouth or anal orifice, or
any instrument or object into the genital or anal orifice of another person. Article 266-A(2) provides:

ART. 266-A. Rape, When and How Committed. – Rape is committed –

xxxx

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or
any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied)

Unlike rape by sexual intercourse, Article 266-B prescribes prision mayor as the penalty if found
guilty of rape by sexual assault or reclusion temporal if there are qualifying circumstances present.

In both cases either in rape by sexual intercourse or rape by sexual assault, only the fact of
penetration need be established under either. It must be stated though that under rape by sexual
intercourse, there must be proof that his penis touched the labia of the victim or slid into her female
organ, and not merely stroked the external surface thereof, to ensure his conviction.32 In Flordeliz v.
People,33 this Court affirmed the conviction of the accused for the crime of rape by sexual assault
committed by a father who inserted his finger in his minor daughter’s vagina. There we noted that it
is "not uncommon x x x for the accused to claim that the case is a mere

fabrication, and that the victim was moved by familial discord and influence, hostility, or
revenge."34 We said:

x x x when the offended parties are young and immature girls, as in this case, courts are inclined to
lend credence to their version of what transpired, considering not only their relative vulnerability, but
also the shame and embarrassment to which they would be exposed if the matter about which they
testified were not true.35

Here, what was established by the testimony of BBB was that appellant inserted his finger in her
vagina. By his act of inserting his finger in BBB’s organ, the crime of rape by sexual assault has
been consummated. The RTC and the CA therefore correctly ruled that appellant should be found
guilty of rape as defined in Article266-A, paragraph 2 of the RPC. Thus the fact that there were no
injuries found in the medical exam deserves scant attention. As correctly stated by the RTC and the
CA, the finding of any injury as yielded by the physical exam is not a requirement in rape cases.36

PENALTY AND DAMAGES

As mentioned, Article 266-B of the RPC imposes different penalties for rape committed under
paragraph 1 or rape by sexual intercourse and under paragraph 2 or rape by sexual assault. Article
266-B prescribes:

ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by
reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

l. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim.

xxxx

Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

xxxx

Reclusion temporal shall also be imposed if the rape is committed with any of the ten
aggravating/qualifying circumstances mentioned in this article. (Emphasis supplied)

It is clear from Article 266-B that generally the penalty for rape through sexual assault is prision
mayor. If qualifying circumstances have attended the crime and the same have been properly
alleged in the information the penalty imposed would be increased to reclusion temporal.

In this case, the crime committed was rape through sexual assault. It having been established that
1âwphi1

BBB was under 18 years of age at the time of the crime and that appellant is her father, a qualifying
circumstance, the proper penalty to be imposed should be reclusion temporal. We are, therefore,
constrained to modify the penalty imposed by the CA since it imposed the penalty suited for the
crime of qualified rape by sexual intercourse as opposed to qualified rape by sexual assault. In this
respect, the penalty that must be imposed is an indeterminate penalty of nine (9) years of prision
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal,
as maximum.
We also agree with the R TC and the CA that BBB is entitled to damages. Indeed, in People v.
Buclao,37 we reiterated that in rape cases, the award of civil indemnity is mandatory upon proof of the
commission of rape, whereas moral damages are automatically awarded without the need to prove
mental and physical suffering and that exemplary damages are also imposed, as example for the
public good and to protect minors from all forms of sexual abuse. However, to conform with current
jurisprudence on the award of damages respecting the crime of qualified rape by sexual assault, we
modify the award to BBB of ₱30,000.00 as civil indemnity upon the finding of the fact of rape,
₱30,000.00 as moral damages automatically awarded in rape case without need of proof and
₱30,000.00 as exemplary damages.38

WHEREFORE, the appeal is DISMISSED for lack of merit. The January 9, 2013 Decision of the
Court of Appeals in CA-G.R. CR No. 34484 is AFFIRMED with MODIFICATION. Appellant Jose
Salvador a.k.a "Felix" is hereby found GUILTY beyond reasonable doubt of Rape under Article 266-
A(2) of the Revised Penal Code, as amended by R.A. No. 8353, and is accordingly sentenced to
suffer the indeterminate penalty of nine (9) years of prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, as maximum, and to pay BBB
₱30,000.00 as civil indemnity, ₱30,000.00 as moral damages and ₱30,000.00 as exemplary
damages.

With costs against the accused-appellant.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN*

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P.A. SERENO
Chief Justice
RULE 110 D: UNION BANK VS PEOPLE 667 SCRA 113

Republic of the Philippines

Supreme Court

Manila

EN BANC

UNION BANK OF THE, G.R. No. 192565

PHILIPPINES and DESI

TOMAS, Present:

Petitioners,
CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,*

- versus - ABAD,

VILLARAMA, JR.,
 PEREZ,

MENDOZA,

SERENO,**

REYES, and

PERLAS-BERNABE, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

February 28, 2012

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

DECISION

BRION, J.:

We review in this Rule 45 petition, the decision[1] of the Regional Trial

Court, Branch 65, Makati City (RTC-Makati City) in Civil Case No. 09-1038. The
petition seeks to reverse and set aside the RTC-Makati City decision dismissing the
petition for certiorari of petitioners Union Bank of the Philippines (Union Bank)
and Desi Tomas (collectively, the petitioners). The RTC found that the
Metropolitan Trial Court, Branch 63, Makati City (MeTC-Makati City) did not
commit any grave abuse of discretion in denying the motion to quash the
information for perjury filed by Tomas.

The Antecedents

Tomas was charged in court for perjury under Article 183 of the Revised
Penal Code (RPC) for making a false narration in a Certificate against Forum
Shopping. The Information against her reads:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously make untruthful
statements under oath upon a material matter before a competent person authorized
to administer oath which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit of merit of a complaint for sum of money with prayer
for a writ of replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial
Court[,] Pasay City, that the Union Bank of the Philippines has not commenced any
other action or proceeding involving the same issues in another tribunal or agency,
accused knowing well that said material statement was false thereby making a willful
and deliberate assertion of falsehood.[2]

The accusation stemmed from petitioner Union Banks two (2) complaints
for sum of money with prayer for a writ of replevin against the spouses Eddie and
Eliza Tamondong and a John Doe. The first complaint, docketed as Civil Case No.
98-0717, was filed before the RTC, Branch 109, Pasay City on April 13, 1998.
The second complaint, docketed as Civil Case No. 342-000, was filed on March 15,
2000 and raffled to the MeTC, Branch 47, Pasay City. Both complaints showed
that Tomas executed and signed the Certification against Forum Shopping.
Accordingly, she was charged of deliberately violating Article 183 of the RPC by
falsely declaring under oath in the Certificate against Forum Shopping in the
second complaint that she did not commence any other action or proceeding
involving the same issue in another tribunal or agency.

Tomas filed a Motion to Quash,[3] citing two grounds. First, she argued that
the venue was improperly laid since it is the Pasay City court (where the
Certificate against Forum Shopping was submitted and used) and not the MeTC-
Makati City (where the Certificate against Forum Shopping was subscribed) that
has jurisdiction over the perjury case. Second, she argued that the facts charged
do not constitute an offense because: (a) the third element of perjury the willful
and deliberate assertion of falsehood was not alleged with particularity without
specifying what the other action or proceeding commenced involving the same
issues in another tribunal or agency; (b) there was no other action or proceeding
pending in another court when the second complaint was filed; and (c) she was
charged with perjury by giving false testimony while the allegations in the
Information make out perjury by making a false affidavit.

The MeTC-Makati City denied the Motion to Quash, ruling that it has
jurisdiction over the case since the Certificate against Forum Shopping was
notarized in Makati City.[4] The MeTC-Makati City also ruled that the allegations in
the Information sufficiently charged Tomas with perjury.[5] The MeTC-
Makati City subsequently denied Tomas motion for reconsideration.[6]
 The petitioners filed a petition for certiorari before the RTC-Makati City to
annul and set aside the MeTC-Makati City orders on the ground of grave abuse of
discretion. The petitioners anchored their petition on the rulings in United States
v. Canet[7] and Ilusorio v. Bildner[8] which ruled that venue and jurisdiction should
be in the place where the false document was presented.

The Assailed RTC Decision

In dismissing the petition for certiorari, the RTC-Makati City held:

[I]nsofar as the petitioners stance is concerned[,] the more recent case of [Sy Tiong Shiou
v. Sy] (GR Nos. 174168 & 179438, March 30, 2009) however, reaffirms what has been the
long standing view on the venue with respect to perjury cases. In this particular case[,]
the high court reiterated the rule that the criminal action shall be instituted and tried in
the court of the municipality or territory where the offense was committed, or where
any of its essential ingredients occurred. It went on to declare that since the subject
document[,] the execution of which was the subject of the charge[,] was subscribed and
sworn to in Manila[,] then the court of the said territorial jurisdiction was the proper
venue of the criminal action[.]

xxxx

x x x Given the present state of jurisprudence on the matter, it is not amiss to state that
the city court of Makati City has jurisdiction to try and decide the case for perjury
inasmuch as the gist of the complaint itself which constitute[s] the charge against the
petitioner dwells solely on the act of subscribing to a false certification. On the other
hand, the charge against the accused in the case of Ilusorio v. Bildner, et al., based on
the complaint-affidavits therein[,] was not simply the execution of the questioned
documents but rather the introduction of the false evidence through the subject
documents before the court of Makati City.[9] (emphasis ours)
 The RTC-Makati City ruled that the MeTC-Makati City did not commit grave
abuse of discretion since the order denying the Motion to Quash was based on
jurisprudence later than Ilusorio. The RTC-Makati City also observed that the facts
in Ilusorio are different from the facts of the present case. Lastly, the RTC-
Makati City ruled that the Rule 65 petition was improper since the petitioners can
later appeal the decision in the principal case. The RTC-Makati City subsequently
denied the petitioners motion for reconsideration.[10]

The Petition

The petitioners pray that we reverse the RTC-Makati City decision and quash the
Information for perjury against Tomas. The petitioners contend that
the Ilusorio ruling is more applicable to the present facts than our ruling in Sy
Tiong Shiou v. Sy Chim.[11] They argued that the facts in Ilusorio showed that the
filing of the petitions in court containing the false statements was the essential
ingredient that consummated the perjury. In Sy Tiong, the perjurious statements
were made in a General Information Sheet (GIS) that was submitted to the
Securities and Exchange Commission (SEC).

Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners view.
In his Manifestation and Motion in lieu of Comment (which we hereby treat as the
Comment to the petition), the Solicitor General also relied on Ilusorio and opined
that the lis mota in the crime of perjury is the deliberate or intentional giving of
false evidence in the court where the evidence is material. The Solicitor General
observed that the criminal intent to assert a falsehood under oath only became
manifest before the MeTC-Pasay City.

The Issue

The case presents to us the issue of what the proper venue of perjury under
Article 183 of the RPC should be Makati City, where the Certificate against Forum
Shopping was notarized, or Pasay City, where the Certification was presented to
the trial court.

The Courts Ruling

We deny the petition and hold that the MeTC-Makati City is the proper venue
and the proper court to take cognizance of the perjury case against the
petitioners.

Venue of Action and Criminal Jurisdiction

Venue is an essential element of jurisdiction in criminal cases. It determines

not only the place where the criminal action is to be instituted, but also the court
that has the jurisdiction to try and hear the case. The reason for this rule is two-
fold. First, the jurisdiction of trial courts is limited to well-defined territories such
that a trial court can only hear and try cases involving crimes committed within its
territorial jurisdiction.[12] Second, laying the venue in the locus criminis is
grounded on the necessity and justice of having an accused on trial in the
municipality of province where witnesses and other facilities for his defense are
available.[13]

Unlike in civil cases, a finding of improper venue in criminal cases carries

jurisdictional consequences. In determining the venue where the criminal action
is to be instituted and the court which has jurisdiction over it, Section 15(a), Rule
110 of the 2000 Revised Rules of Criminal Procedure provides:

(a) Subject to existing laws, the criminal action shall be instituted and tried in the court
or municipality or territory where the offense was committed or where any of its
essential ingredients occurred. [emphasis ours]

The above provision should be read in light of Section 10, Rule 110 of the
2000 Revised Rules of Criminal Procedure which states:

Place of commission of the offense. The complaint or information is sufficient if it can

be understood from its allegations that the offense was committed or some of its
essential ingredients occurred at some place within the jurisdiction of the court, unless
the particular place where it was committed constitutes an essential element of the
offense charged or is necessary for its identification.

Both provisions categorically place the venue and jurisdiction over criminal
cases not only in the court where the offense was committed, but also where any
of its essential ingredients took place. In other words, the venue of
action and of jurisdiction are deemed sufficiently alleged where the Information
states that the offense was committed or some of its essential ingredients
occurred at a place within the territorial jurisdiction of the court.

Information Charging Perjury

Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains

the requirement for a Certificate against Forum Shopping. The Certificate against
Forum Shopping can be made either by a statement under oath in the complaint
or initiatory pleading asserting a claim or relief; it may also be in a sworn
certification annexed to the complaint or initiatory pleading. In both instances,
the affiant is required to execute a statement under oath before a duly
commissioned notary public or any competent person authorized to administer
oath that: (a) he or she has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-judicial agency and,
to the best of his or her knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement
of the present status thereof; and (c) if he or she should thereafter learn that the
same or similar action or claim has been filed or is pending, he or she shall report
that fact within five days therefrom to the court wherein his or her aforesaid
complaint or initiatory pleading has been filed. In relation to the crime of perjury,
the material matter in a Certificate against Forum Shopping is the truth of the
required declarations which is designed to guard against litigants pursuing
simultaneous remedies in different fora.[14]

In this case, Tomas is charged with the crime of perjury under Article 183 of
the RPC for making a false Certificate against Forum Shopping. The elements of
perjury under Article 183 are:
 (a) That the accused made a statement under oath or executed an
affidavit upon a material matter.

(b) That the statement or affidavit was made before a competent

officer, authorized to receive and administer oath.

(c) That in the statement or affidavit, the accused made a willful

and deliberate assertion of a falsehood.

(d) That the sworn statement or affidavit containing the falsity

is required by law or made for a legal purpose.[15] (emphasis
ours)

Where the jurisdiction of the court is being assailed in a criminal case on

the ground of improper venue, the allegations in the complaint and information
must be examined together with Section 15(a), Rule 110 of the 2000 Revised
Rules of Criminal Procedure. On this basis, we find that the allegations in the
Information sufficiently support a finding that the crime of perjury was committed
by Tomas within the territorial jurisdiction of the MeTC-Makati City.

The first element of the crime of perjury, the execution of the subject
Certificate against Forum Shopping was alleged in the Information to have been
committed in MakatiCity. Likewise, the second and fourth elements, requiring the
Certificate against Forum Shopping to be under oath before a notary public, were
also sufficiently alleged in the Information to have been made in Makati City:

That on or about the 13th day of March 2000 in the City of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously make untruthful
statements under oath upon a material matter before a competent person authorized
to administer oath which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit x x x.[16]

We also find that the third element of willful and deliberate falsehood
was also sufficiently alleged to have been committed in Makati City,
not Pasay City, as indicated in the last portion of the Information:

[S]aid accused stated in the Verification/Certification/Affidavit of merit of a complaint

for sum of money with prayer for a writ of replevin docketed as [Civil] Case No. 342-00
of the Metropolitan Trial Court[,] Pasay City, that the Union Bank of the Philippines has
not commenced any other action or proceeding involving the same issues in another
tribunal or agency, accused knowing well that said material statement was false thereby
making a willful and deliberate assertion of falsehood.[17] (underscoring ours)

Tomas deliberate and intentional assertion of falsehood was allegedly

shown when she made the false declarations in the Certificate against Forum
Shopping before a notary public in Makati City, despite her knowledge that the
material statements she subscribed and swore to were not true. Thus, Makati City
is the proper venue and MeTC-Makati City is the proper court to try the perjury
case against Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules
of Criminal Procedure as all the essential elements constituting the crime of
perjury were committed within the territorial jurisdiction of Makati City, not
Pasay City.

Referral to the En Banc

The present case was referred to the En Banc primarily to address the seeming
conflict between the division rulings of the Court in the Ilusorio case that is cited
as basis of this petition, and the Sy Tiong case that was the basis of the
assailed RTC-Makati City ruling.

The Cited Ilusorio and Sy Tiong Cases

The subject matter of the perjury charge in Ilusorio involved false

statements contained in verified petitions filed with the court for the issuance of
a new owners duplicate copies of certificates of title. The verified petitions
containing the false statements were subscribed and sworn to in Pasig City, but
were filed in Makati City and Tagaytay City. The question posed was: which court
(Pasig City, Makati City and/or Tagaytay City) had jurisdiction to try and hear the
perjury cases?

We ruled that the venues of the action were

in Makati City and Tagaytay City, the places where the verified petitions were
filed. The Court reasoned out that it was only upon filing that the intent to assert
an alleged falsehood became manifest and where the alleged untruthful
statement found relevance or materiality. We cited as jurisprudential authority
the case of United States. v. Caet[18] which ruled:

It is immaterial where the affidavit was subscribed and sworn, so long as it appears from
the information that the defendant, by means of such affidavit, "swore to" and
knowingly submitted false evidence, material to a point at issue in a judicial proceeding
pending in the Court of First Instance of Iloilo Province. The gist of the offense charged is
not the making of the affidavit in Manila, but the intentional giving of false evidence in
the Court of First Instance of Iloilo Province by means of such affidavit. [emphasis and
underscoring deleted]

In Sy Tiong, the perjured statements were made in a GIS which was

subscribed and sworn to in Manila. We ruled that the proper venue for the
perjury charges was in Manila where the GIS was subscribed and sworn to. We
held that the perjury was consummated in Manila where the false statement was
made. As supporting jurisprudence, we cited the case of Villanueva v. Secretary of
Justice[19] that, in turn, cited an American case entitled U.S. v. Norris.[20] We ruled
in Villanueva that

Perjury is an obstruction of justice; its perpetration well may affect the dearest
concerns of the parties before a tribunal. Deliberate material falsification under oath
constitutes the crime of perjury, and the crime is complete when a witness' statement
has once been made.

The Crime of Perjury: A Background

 To have a better appreciation of the issue facing the Court, a look at the
historical background of how the crime of perjury (specifically, Article 183 of the
RPC) evolved in our jurisdiction.

The RPC penalizes three forms of false testimonies. The first is false testimony for
and against the defendant in a criminal case (Articles 180 and 181, RPC);
the second is false testimony in a civil case (Article 182, RPC); and the third is false
testimony in other cases (Article 183, RPC). Based on the Information filed, the
present case involves the making of an untruthful statement in an affidavit on a
material matter.

These RPC provisions, however, are not really the bases of the rulings cited
by the parties in their respective arguments. The cited Ilusorio ruling, although
issued by this Court in 2008, harked back to the case of Caet which was decided in
1915, i.e., before the present RPC took effect.[21] Sy Tiong, on the other hand, is a
2009 ruling that cited Villanueva, a 2005 case that in turn cited United States v.
Norris, a 1937 American case. Significantly, unlike Canet, Sy Tiong is entirely based
on rulings rendered after the present RPC took effect.[22]

The perjurious act in Caet consisted of an information charging perjury

through the presentation in court of a motion accompanied by a false sworn
affidavit. At the time the Caet ruling was rendered, the prevailing law on perjury
and the rules on prosecution of criminal offenses were found in Section 3, Act No.
1697 of the Philippine Commission, and in Subsection 4, Section 6 of General
Order No. 58[23] for the procedural aspect.

Section 3 of Act No. 1697 reads:

 Sec. 3. Any person who, having taken oath before a competent tribunal, officer,
or person, in any case in which a law of the Philippine Islands authorizes an oath to be
administered, that he will testify, declare, depose, or certify truly, or that any written
testimony, declaration, disposition, or certificate by him subscribed is true, willfully and
contrary to such oath states or subscribes any material matter which he does not
believe to be true, is guilty of perjury, and shall be punished by a fine of not more than
two thousand pesos and by imprisonment for not more than five years; and shall
moreover, thereafter be incapable of holding any public office or of giving testimony in
any court of the Philippine Islands until such time as the judgment against him is
reversed.

This law was copied, with the necessary changes, from Sections 5392[24] and
5393[25] of the Revised Statutes of the United States.[26] Act No. 1697 was intended
to make the mere execution of a false affidavit punishable in our jurisdiction.[27]

In turn, Subsection 4, Section 6 of General Order No. 58 provided that the

venue shall be the court of the place where the crime was committed.

As applied and interpreted by the Court in Caet, perjury was committed by

the act of representing a false document in a judicial proceeding.[28] The venue of
action was held by the Court to be at the place where the false document was
presented since the presentation was the act that consummated the crime.

The annotation of Justices Aquino and Grio-Aquino in their textbook on the

RPC[29] interestingly explains the history of the perjury provisions of the present
RPC and traces as well the linkage between Act No. 1697 and the present
Code. To quote these authors:[30]

Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del Pans
Proposed Correctional Code, while art. 181 was taken from art. 319 of the old Penal
Code and Art. 157 of Del Pans Proposed Correctional Code. Said arts. 318 and 319,
together with art. 321 of the old Penal Code, were impliedly repealed by Act 1697, the
Perjury Law, passed on August 23, 1907, which in turn was expressly repealed by the
 Administrative Code of 1916, Act 2657. In view of the express repeal of Act 1697, arts.
318 and 321 of the old Penal Code were deemed revived. However, Act 2718 expressly
revived secs. 3 and 4 of the Perjury Law. Art. 367 of the Revised Penal Code repealed Act
Nos. 1697 and 2718.

It should be noted that perjury under Acts 1697 and 2718 includes false
testimony, whereas, under the Revised Penal Code, false testimony includes
perjury. Our law on false testimony is of Spanish origin, but our law on perjury (art. 183
taken from sec. 3 of Act 1697) is derived from American statutes. The provisions of the
old Penal Code on false testimony embrace perjury committed in court or in some
contentious proceeding, while perjury as defined in Act 1697 includes the making of a
false affidavit. The provisions of the Revised Penal Code on false testimony are more
severe and strict than those of Act 1697 on perjury. [italics ours]

With this background, it can be appreciated that Article 183 of the RPC
which provides:

The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon any person, who knowingly makes untruthful
statements and not being included in the provisions of the next preceding articles,
shall testify under oath, or make an affidavit, upon any material matter before a
competent person authorized to administer an oath in cases in which the law so
requires. [emphasis supplied; emphases ours]

in fact refers to either of two punishable acts (1) falsely testifying under oath in a
proceeding other than a criminal or civil case; and (2) making a false affidavit
before a person authorized to administer an oath on any material matter where
the law requires an oath.
 As above discussed, Sy Tiong decided under Article 183 of the RPC
essentially involved perjured statements made in a GIS that was subscribed and
sworn to in Manila and submitted to the SEC in Mandaluyong City. Thus, the case
involved the making of an affidavit, not an actual testimony in a proceeding that
is neither criminal nor civil. From this perspective, the situs of the oath, i.e., the
place where the oath was taken, is the place where the offense was committed. By
implication, the proper venue would have been the City of Mandaluyong the site
of the SEC had the charge involved an actual testimony made before the SEC.

In contrast, Caet involved the presentation in court of a motion supported

and accompanied by an affidavit that contained a falsity. With Section 3 of Act No.
1697 as basis, the issue related to the submission of the affidavit in a judicial
proceeding. This came at a time when Act No. 1697 was the perjury law, and
made no distinction between judicial and other proceedings, and at the same time
separately penalized the making of false statements under oath (unlike the
present RPC which separately deals with false testimony in criminal, civil and
other proceedings, while at the same time also penalizing the making of false
affidavits). Understandably, the venue should be the place where the submission
was made to the court or the situs of the court; it could not have been the place
where the affidavit was sworn to simply because this was not the offense charged
in the Information.

The case of Ilusorio cited the Caet case as its authority, in a situation where
the sworn petitions filed in court for the issuance of duplicate certificates of title
(that were allegedly lost) were the cited sworn statements to support the charge
of perjury for the falsities stated in the sworn petitions. The Court ruled that the
proper venue should be the Cities of Makati and Tagaytay because it was in the
courts of these cities where the intent to assert an alleged falsehood became
manifest and where the alleged untruthful statement finds relevance or
materiality in deciding the issue of whether new owners duplicate copies of the
[Certificate of Condominium Title] and [Transfer Certificates of Title] may
issue.[31] To the Court, whether the perjurious statements contained in the four
petitions were subscribed and sworn in Pasig is immaterial, the gist of the offense
of perjury being the intentional giving of false statement,[32] citing Caet as
authority for its statement.

The statement in Ilusorio may have partly led to the present confusion on
venue because of its very categorical tenor in pointing to the considerations to be
made in the determination of venue; it leaves the impression that the place
where the oath was taken is not at all a material consideration, forgetting that
Article 183 of the RPC clearly speaks of two situations while Article 182 of the RPC
likewise applies to false testimony in civil cases.

The Ilusorio statement would have made perfect sense had the basis for the
charge been Article 182 of the RPC, on the assumption that the petition itself
constitutes a false testimony in a civil case. The Caet ruling would then have been
completely applicable as the sworn statement is used in a civil case, although no
such distinction was made under Caet because the applicable law at the time (Act
No. 1697) did not make any distinction.

If Article 183 of the RPC were to be used, as what in fact appears in

the Ilusorio ruling, then only that portion of the article, referring to the making of
an affidavit, would have been applicable as the other portion refers to false
testimony in other proceedings which a judicial petition for the issuance of a new
owners duplicate copy of a Certificate of Condominium Title is not because it is a
civil proceeding in court. As a perjury based on the making of a false affidavit,
what assumes materiality is the site where the oath was taken as this is the place
where the oath was made, in this case, Pasig City.

Procedurally, the rule on venue of criminal cases has been subject to

various changes from the time General Order No. 58 was replaced by Rules 106 to
122 of the Rules of Court on July 1, 1940. Section 14, Rule 106 of the Rules of
Court provided for the rule on venue of criminal actions and it expressly included,
as proper venue, the place where any one of the essential ingredients of the crime
took place. This change was followed by the passage of the 1964 Rules of Criminal
Procedure,[33] the 1985 Rules of Criminal Procedure,[34] and the 2000 Revised
Rules of Criminal Procedure which all adopted the 1940 Rules of Criminal
Procedures expanded venue of criminal actions. Thus, the venue of criminal cases
is not only in the place where the offense was committed, but also where any of its
essential ingredients took place.

In the present case, the Certification against Forum Shopping was made
integral parts of two complaints for sum of money with prayer for a writ of
replevin against the respondent spouses Eddie Tamondong and Eliza B.
Tamondong, who, in turn, filed a complaint-affidavit against Tomas for violation
of Article 183 of the RPC. As alleged in the Information that followed, the criminal
act charged was for the execution by Tomas of an affidavit that contained a
falsity.

Under the circumstances, Article 183 of the RPC is indeed the applicable
provision; thus, jurisdiction and venue should be determined on the basis of this
article which penalizes one who make[s] an affidavit, upon any material matter
before a competent person authorized to administer an oath in cases in which the
law so requires. The constitutive act of the offense is the making of an affidavit;
thus, the criminal act is consummated when the statement containing a falsity is
subscribed and sworn before a duly authorized person.

Based on these considerations, we hold that our ruling in Sy Tiong is more

in accord with Article 183 of the RPC and Section 15(a), Rule 110 of the 2000
Revised Rules of Criminal Procedure. To reiterate for the guidance of the Bar and
the Bench, the crime of perjury committed through the making of a false
affidavit under Article 183 of the RPC is committed at the time the affiant
subscribes and swears to his or her affidavit since it is at that time that all the
elements of the crime of perjury are executed. When the crime is committed
through false testimony under oath in a proceeding that is neither criminal nor
civil, venue is at the place where the testimony under oath is given. If in lieu of or
as supplement to the actual testimony made in a proceeding that is neither
criminal nor civil, a written sworn statement is submitted, venue may either be at
the place where the sworn statement is submitted or where the oath was taken
as the taking of the oath and the submission are both material ingredients of the
crime committed. In all cases, determination of venue shall be based on the acts
alleged in the Information to be constitutive of the crime committed.

WHEREFORE, premises considered, we hereby DENY the petition for lack of

merit. Costs against the petitioners.

SO ORDERED.

ARTURO D. BRION
Associate Justice
 WE CONCUR:

RENATO C. CORONA

Chief Justice

PRESBITERO J. VELASCO, JR.

ANTONIO T. CARPIO Associate Justice

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice DIOSDADO M. PERALTA

Associate Justice

(On Leave)
 LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
MARTIN S. VILLARAMA, JR.
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

(On Leave)

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice
RULE 111 A: SOLIDUM VS PEOPLE 718 SCRA 263

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless
imprudence resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of
Appeals (CA). He had been part of the team of anesthesiologists during the surgical pull-through
operation conducted on a three-year old patient born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after
his birth, Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine
out through the abdominal wall,3 enabling him to excrete through a colostomy bag attached to the
side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-
through operation.5Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr.
Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr.
Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the
operation, Gerald experienced bradycardia,7 and went into a coma.8His coma lasted for two
weeks,9 but he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint
for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of
Manila against the attending physicians.12

Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely against Dr.
Solidum,13alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an
anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer
the anesthesia on three-year old baby boy GERALD ALBERT GERCAYO, represented by his
mother, MA. LUZ GERCAYO, the former having been born with an imperforate anus [no anal
opening] and was to undergo an operation for anal opening [pull through operation], did then and
there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of
his judgment would dictate under said circumstance, by failing to monitor and regulate properly the
levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his said carelessness and
negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect
called hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body, seeing, speaking or hearing, to
his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC
pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was
docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable
doubt of reckless imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM
GUILTY beyond reasonable doubt as principal of the crime charged and is hereby sentenced to
suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr.
Marichu Abella, private complainant Luz Gercayo, the amount of ₱500,000.00 as moral damages
and ₱100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC
excluded them from solidary liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond
reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto mayor as minimum to one (1)
year, one (1) month and ten (10) days of prision correccional as maximum and to indemnify jointly
and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of ₱500,000.00
as moral damages and ₱100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:

The case appears to be a textbook example of res ipsa loquitur.

xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As
noted by the OSG, the accused himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his imperforate anus, the child was healthy.
The tests and other procedures failed to reveal that he was suffering from any known ailment or
disability that could turn into a significant risk. There was not a hint that the nature of the operation
itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident
to a failure in the proper administration of anesthesia, the gravamen of the charge in this case. The
High Court elucidates in Ramos vs. Court of Appeals 321 SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent
upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to
the patient if due care had been exercised, an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission
complained of and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury
sustained, and in line with the hornbook rules on evidence, we will afford the factual findings of a trial
court the respect they deserve in the absence of a showing of arbitrariness or disregard of material
facts that might affect the disposition of the case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a
presumption of negligence, it need not offend due process, as long as the accused is afforded the
opportunity to go forward with his own evidence and prove that he has no criminal intent. It is in this
light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22

Hence, this appeal.

Issues

Dr. Solidum avers that:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE

LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE CRIME
 CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE BASIS OF
THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE
ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN
AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS BREACHES THE
CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE THE
ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES

IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE
APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE WAS NO 100%
HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND
THE APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE.
THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE
CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED

THERE BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING
THAT THE CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY
AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO
OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res
ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine
res ipsa loquitur means that "where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that the accident arose from want of care."24 It is simply
"a recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence. It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The doctrine, when applicable to the facts and
circumstances of a given case, is not meant to and does not dispense with the requirement of proof
of culpable negligence against the party charged. It merely determines and regulates what shall be
prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can
be invoked when and only when, under the circumstances involved, direct evidence is absent and
not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and
exhaustively explained in Ramos v. Court of Appeals,28 where the Court said –

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon the harm are themselves of such a character
as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur
in medical negligence cases presents a question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons
of skill and experience are competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to the statements and acts
of physicians and surgeons, external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised, an inference
of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of the wrong part of the body when
another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it
does not automatically apply to all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have followed if due care
had been exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he
could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of
the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it
should be conceded without difficulty that the second and third elements were present, considering
that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and
that the patient, being then unconscious during the operation, could not have been guilty of
contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the imperforate anus,
Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the
heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-
through operation, or during the administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting
them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham,31 relevant
portions of the decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the
treatment of infectious mononucleosis. The patient's symptoms had included a swollen throat and
some breathing difficulty. Early in the morning of January 9 the patient was restless, and at 1:30 a.m.
Dr. Brigham examined the patient. His inspection of the patient's air passage revealed that it was in
satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital, advising
him that the patient was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital
called a second time to advise the doctor that the patient was not responding. The doctor ordered
that a medicine be administered, and he departed for the hospital. When he arrived, the physician
who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined
him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30
a.m. of asphyxia, as a result of a sudden, acute closing of the air passage. He also found that the air
passage had been adequate to maintain life up to 2 or 3 minutes prior to death. He did not know
what caused the air passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious
mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that
the injury rarely occurs does not in itself prove that the injury was probably caused by someone's
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472
(1953). See 2 S. Speiser, The Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for application of res ipsa loquitur
doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation took place
over a very short period of time. Under these circumstances it would not be reasonable to infer that
the physician was negligent. There was no palpably negligent act. The common experience of
mankind does not suggest that death would not be expected without negligence. And there is no
expert medical testimony to create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether
the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance that the circumstances justly demand, whereby such
other person suffers injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or
failing to do, without malice, an act from which material damage results by reason of an inexcusable
lack of precaution on the part of the person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and properly
regulate the level of anesthetic agent administered on Gerald by overdosing at 100% halothane. In
affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and
conclusions in his report except for an observation which, to all intents and purposes, has become
the storm center of this dispute. He wanted to correct one piece of information regarding the dosage
of the anesthetic agent administered to the child. He declared that he made a mistake in reporting a
100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit 1-A
and 1-B to indicate the administration at intervals of the anesthetic agent.
 (b) the clinical abstract – A portion of this record that reads as follows was marked Exhibit
3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient was noted to
have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately administered. However,
the bradycardia persisted, the inhalational agent was shut off, and the patient was ventilated
with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did
not respond until no cardiac rate can be auscultated and the surgeons were immediately told
to stop the operation. The patient was put on a supine position and CPR was initiated.
Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage –
still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45
secs, patient’s vital signs returned to normal. The entire resuscitation lasted approximately 3-
5 mins. The surgeons were then told to proceed to the closure and the child’s vital signs
throughout and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with
100% oxygen and another dose of ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only sheepishly note I can’t understand the
number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It
only contains the information that the anesthetic plan was to put the patient under general
anesthesia using a nonrebreathing system with halothane as the sole anesthetic agent and that 1
hour and 45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be apparent that the
100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the halothane itself was reduced or shut
off.

The key question remains – what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the anesthetic agent, and
the accused Dr. Solidum stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never leaving the operating room except
for a few minutes to answer the call of nature but leaving behind the other members of his team Drs.
Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not
100% halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was therefore conversant of the things that
happened. She revealed that they were using a machine that closely monitored the concentration of
the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he takes the
bull by the horns, so to speak. In his affidavit, he says, reading from the record, that the quantity of
halothane used in the operation is one percent (1%) delivered at time intervals of 15 minutes. He
studiedly mentions – the concentration of halothane as reflected in the anesthesia record (Annex D
of the complaint-affidavit) is only one percent (1%) – The numbers indicated in 15 minute increments
for halothane is an indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated by the body
during the entire operation.

xxxx
In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr.
Vertido on the question of the dosage of the anesthetic used on the child would not really validate
the non-guilt of the anesthesiologist. Led to agree that the halothane used was not 100% as initially
believed, he was nonetheless unaware of the implications of the change in his testimony. The court
observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of
oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing
central nervous system such as stupor, loss of consciousness, decrease in heart rate, loss of usual
acuity and abnormal motor function, are manifestations of this condition or syndrome. But why would
there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court,
whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are
incontestable, and they can only be led to one conclusion – if the application of anesthesia was
really closely monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt
because the circumstances cited by the CA were insufficient to establish that Dr. Solidum had been
guilty of inexcusable lack of precaution in monitoring the administration of the anesthetic agent to
Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical science. In the recent case of
Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same circumstances. It is in this aspect of
medical malpractice that expert testimony is essential to establish not only the standard of care of
the profession but also that the physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.

xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's
negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on
the part of the surgeon as well as a causal connection of such breach and the resulting death of his
patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending physician was absolved of
liability for the death of the complainant’s wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes.’ In other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.’"

An action upon medical negligence – whether criminal, civil or administrative – calls for the plaintiff to
prove by competent evidence each of the following four elements, namely: (a) the duty owed by the
physician to the patient, as created by the physician-patient relationship, to act in accordance with
the specific norms or standards established by his profession; (b) the breach of the duty by the
physician’s failing to act in accordance with the applicable standard of care; (3) the causation, i.e.,
there must be a reasonably close and causal connection between the negligent act or omission and
the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable
risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case
exists. Because most medical malpractice cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly possessed and
exercised by similar specialists under similar circumstances. The specialty standard of care may be
higher than that required of the general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for
negligence or malpractice may be measured, and it does not depend, therefore, on any individual
physician’s own knowledge either. In attempting to fix a standard by which a court may determine
whether the physician has properly performed the requisite duty toward the patient, expert medical
testimony from both plaintiff and defense experts is required. The judge, as the trier of fact,
ultimately determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to
provide guidance to the trial court on what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first three elements of a negligence and
malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served
as the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused
on how his Committee had conducted the investigation.39 Even then, the report of his Committee was
favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru
operation and was administered general anesthesia by a team of anesthesia residents. The patient,
at the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation
for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of
the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less than five (5) minutes and
that oxygen was continuously being administered throughout, unfortunately, as later become
manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the
committee find that the same were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on the part of the
anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also
presented as a Prosecution witness, but his testimony concentrated on the results of the physical
examination he had conducted on Gerald, as borne out by the following portions of his direct
examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this
case, halothane was used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45
minutes after the operation, the patient experienced a bradycardia or slowing of heart rate, now as a
doctor, would you be able to tell this Honorable Court as to what cause of the slowing of heart rate
as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time
because is some reason one way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, we’re talking
about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate,
now what is the immediate cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you
do a vagal reflex in the neck wherein the vagal receptors are located at the lateral part of the neck,
when you press that, you produce the slowing of the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of
oxygen by the patient, would that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is
a low oxygen level in the blood, the normal thing for the heart is to pump or to do not a bradycardia
but a … to counter act the Hypoxia that is being experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and
other anesthetic medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the
anesthesia record and the factors that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this
Honorable court your last paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the
production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at
this and tell me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor,
this Xerox copy if you can show to this Honorable Court and even to this representation the word
"one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call
me and even the attention of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA I’m asking you, just answer my question, did you see there 100% and 100 figures, tell
me, yes or no?

WITNESS I’m trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily,
because this is just a xerox copy presented by the fiscal, that the percentage here that the
Halothane administered by Dr. Solidum to the patient is 1% only so may we request that this portion,
temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this 1%
Halothane also be bracketed and the same be marked as our Exhibit "1-A".

xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors
that contributed to Hypoxia is that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call
hypoxia and according to you, when this Gerald suffered hypoxia, there are other factors that might
lead to this Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to
operations being conducted by the doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that
this Gerald might [be] exposed to some risk is that correct?

A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Gerald’s operation for his
imperforate anus, considered a major operation, had exposed him to the risk of suffering the same
condition.43 He then corrected his earlier finding that 100% halothane had been administered on
Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of
anesthesia administered to said Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."45However, the foregoing circumstances, taken together, did not prove
beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings did not preclude the probability that other
factors related to Gerald’s major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the
anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its
corresponding side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind
of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to acquit him of the crime of
reckless imprudence resulting to serious physical injuries. "A reasonable doubt of guilt," according to
United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a
doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to
accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides,
you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to
act on the faith of it in the most important and crucial affairs of your life, you may properly convict
him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof
beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil
liability. But we cannot now find and declare him civilly liable because the circumstances that have
1âw phi 1

been established here do not present the factual and legal bases for validly doing so. His acquittal
did not derive only from reasonable doubt. There was really no firm and competent showing how the
injury to Gerard had been caused. That meant that the manner of administration of the anesthesia
by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on
the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on speculation
but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the
unusual decree of the RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly
liable jointly and severally with Dr. Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with
the criminal action refers only to that arising from the offense charged.48 It is puzzling, therefore, how
the RTC and the CA could have adjudged Ospital ng Maynila jointly and severally liable with Dr.
Solidum for the damages despite the obvious fact that Ospital ng Maynila, being an artificial entity,
had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and
whimsically, which rendered their judgment against Ospital ng Maynila void as the product of grave
abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA
overlooked. We deem it important, then, to express the following observations for the instruction of
the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to
be heard was not respected from the outset. The R TC and the CA should have been alert to this
fundamental defect. Verily, no person can be prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party. Such a rule would enforce the constitutional
guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be
properly enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability
seems far-fetched here. The conditions for subsidiary liability to attach to Ospital ng Maynila should
first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital ng Maynila
must be shown to be a corporation "engaged in any kind of industry." The term industry means any
department or branch of art, occupation or business, especially one that employs labor and capital,
and is engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged
in industry conducted for profit but purely in charitable and humanitarian work.50 Secondly, assuming
that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an
employee of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald.
Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that
civil liability was adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS
ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the
crime of reckless imprudence resulting to serious physical injuries; and MAKES no pronouncement
on costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
RULE 111 A: CASTILLO VS SALVADOR JULY 2014

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191240 July 30, 2014

CRISTINA B. CASTILLO, Petitioner,

vs.
PHILLIP R. SALVADOR, Respondent.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari which assails the Decision1 dated February 11, 2010 of
the Court of Appeals (CA) in CA-G.R. CR No. 30151 with respect only to the civil aspect of the case
as respondent Phillip R. Salvador had been acquitted of the crime of estafa. Respondent Phillip
Salvador and his brother Ramon Salvador were charged with estafa under Article 315, paragraph 2
(a) of the Revised Penal Code in an Information2 which reads:

That during the period from March 2001 up to May 2002, in the City of Las Piñas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and both of them mutually helping and aiding one another, with intent to gain
and by means of false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the
complainant CRISTINA B. CASTILLO, in the amount of US$100,000.00 in the following manner, to
wit: Respondents convinced the complainant to invest into the remittance business in the name of
accused PHILLIP R. SALVADOR in Hongkong, representing to her that they will personally take
charge of the operations and marketing of the said business, assuring her with huge profits because
of the popularity of accused PHILLIP R. SALVADOR, knowing very well that the said
manifestations/representations and fraudulent manifestations were false and were intended only to
exact money from the Complainant, and by reason of the said false representations made by both
accused, the Complainant gave and entrusted to the accused the amount of US$100,000.00 as
seed money to start the operations of the business and the said accused, once in the possession of
the said amount of money, misappropriated, misapplied and/or converted the same to their own
personal use and benefit, to the damage and prejudice of the Complainant in the aforementioned
amount of US$100,000.00.

CONTRARY TO LAW.3

Upon their arraignment, respondentand his brother Ramon pleaded not guilty4 to the offense
charged.

Trial on the merits thereafter ensued.

Petitioner Cristina B. Castillo testified that she is engaged in real estate business, educational
institution, boutique, and trading business.5 She met respondent through a common friend in
December 2000 and became close since then. Respondent had told her that his friends, Jinggoy
Estrada and Rudy Fernandez, were engaged in the freight and remittance business and that Jinggoy
even brought him toHong Kong and Singapore to promote the former's business.6 Petitioner
eventually met respondent’s brother and manager, Ramon Salvador, to whom she volunteered to
financially help respondent in his bid for the Vice-Mayoralty race in Mandaluyong.7 It was also in the
same meeting that they talked about the matter of engaging in a freight and remittance
business.8 Respondent enticed petitioner to go to Hong Kong to see for herself the viability of such
business and Ramon suggested to use respondent’s name to attract the overseas contract workers.9

In March 2001, petitioner and her husband, together with respondent and a certain Virgilio
Calubaquib wentto Hong Kong and they witnessed respondent’s popularity among the Filipino
domestic helpers.10 In April 2001, the same group, with Ramon this time, went to Bangkok where
respondent’s popularity was again shown among the overseas Filipinos.11 In both instances,
respondent promoted their prospective business. In both trips, petitioner paid for all the
travelexpenses and even gave respondent US$10,000.00 as pocket money for the Hong Kong trip
and another US$10,000.00 for the Bangkok trip.12 Her accountant introduced her to a certain Roy
Singun who is into the freight and money remittance business.13 In August 2001, respondent initiated
a trip to Palau, to observe Singun’s business thereat to which petitioner acceded.14 Petitioner paid for
the travel expenses and even gaverespondent US$20,000.00.15 In October 2001, she and
respondent had a training at Western Union at First World Center in Makati City.16

As petitioner had deeply fallen in love with respondent and since she trusted him very much as
heeven acted as a father to her children when her annulment was ongoing, she agreed to embark on
the remittance business. In December 2001, she, accompanied by her mother, Zenaida G. Bondoc
(Zenaida), and Ramon, went to Hong Kong and had the Phillip Salvador Freight and Remittance
International Limited registered on December 27, 2001.17 A Memorandum of Articles of Incorporation
and a Certificate of Incorporation were issued.18 They also rented an office space in Tsimshatsui,
Kowloon, Hong Kong which they registered as their office address as a requirement for opening a
business in Hong Kong, thus, a Notification of Situation of Registered Office was also issued.19 She
agreed with respondent and Ramon that any profit derived from the business would be equally
divided among them and thatrespondent would be in charge of promotion and marketing in Hong
Kong,while Ramon would take charge of the operations of business in the Philippines and she would
be financing the business.20

The business has not operated yet as petitioner was still raising the amount of US$100,000.00 as
capital for the actual operation.21 When petitioner already had the money, she handed the same to
respondent in May 2002 at her mother’s house in Las Piñas City, which was witnessed by her
disabled half-brother Enrico B. Tan (Enrico).22 She also gave respondent ₱100,000.00 in cash to
begiven to Charlie Chau, who is a resident of Hong Kong, as payment for the heart-shaped earrings
she bought from him while she was there. Respondent and Ramon went to Hong Kong in May 2002.
However, the proposed business never operated as respondent only stayed in Hong Kongfor three
days. When she asked respondent about the money and the business, the latter told her that the
money was deposited in a bank.23 However, upon further query, respondent confessed that he used
the money to pay for his other obligations.24 Since then, the US$100,000.00 was not returned at all.

On cross-examination, petitioner testified that she fell deeply in love with respondent and was
convinced thathe truly loved her and intended to marry her once there would beno more legal
impediment;25 that she helped in financing respondent’s campaign in the May 2001 elections.26 As
she loved respondent so much, she gave him monthly allowances amounting to hundreds of
thousands of pesos because he had no work back then.27 She filed the annulment case against her
husband on November 21, 2001 and respondent promised her marriage.28 She claimed that
respondent and Ramon lured her with sweet words in going into the freight and remittance business,
which never operated despite the money she had given respondent.29 She raised the US$100,000.00
by means of selling and pawning her pieces of diamond jewelry.30

Petitioner admitted being blinded by her love for respondent which made her follow all the advice
given by him and his brother Ramon, i.e., to save money for her and respondent’s future because
after the annulment, they would get married and to give the capital for the remittance business in
cash so as not to jeopardize her annulment case.31She did not ask for a receipt for the
US$100,000.00 she gave to respondent as it was for the operational expenses of a business which
will be for their future, as all they needed to do was to get married.32 She further testified that after the
US$100,000.00 was not returned, she still deposited the amount of ₱500,000.00 in respondent’s
UCPB bank account33 and also to Ramon’s bank accounts.34 And while respondent was in the United
States in August 2003, she still gave him US$2,000.00as evidenced by a Prudential Telegraphic
Transfer Application35 dated August 27, 2003.

Petitioner’s mother, Zenaida, corroborated her daughter’s testimony that she was with her and
Ramon when they went to Hong Kong in December 2001 to register the freight and remittance
business.36 She heard Charlie Chau, her daughter's friend, that a part of his office building will be
used for the said remittance business.37 Enrico Tan, also corroborated her sister's claim that she
handed the money to respondent in his presence.38

Respondent testified that he and petitioner became close friends and eventually fell in love and had
an affair.39 They traveled to Hong Kong and Bangkok where petitioner saw how popular he was
among the Filipino domestic helpers,40 which led her to suggest a remittance business. Although
hesitant, he has friends with such business.41He denied that petitioner gave him US$10,000.00
whenhe went to Hong Kong and Bangkok.42 In July 2001, after he came back from the United States,
petitioner had asked him and his brother Ramon for a meeting.43 During the meeting, petitioner
brought up the money remittance business, but Ramon told her that they should make a study of it
first.44 He was introduced to Roy Singun, owner of a money remittance business in Pasay
City.45 Upon the advise of Roy, respondent and petitioner, her husband and Ramon went to Palau in
August 2001.46 He denied receiving US$20,000.00 from petitioner but admitted that it was petitioner
who paid for the plane tickets.47 After their Palau trip, they went into training at Western Union at the
First World Center in Makati City.48 It was only in December 2001 that Ramon, petitioner and her
mother went to Hong Kong to register the business, while he took care of petitioner’s children
here.49 In May 2002, he and Ramon went back to Hong Kong but deniedhaving received the amount
of US$100,000.00 from petitioner but then admitted receipt of the amount of ₱100,000.00 which
petitioner asked him to give to Charlie Chau as payment for the pieces of diamond jewelry she got
from him,50 which Chau had duly acknowledged.51 He denied Enrico’s testimony that petitioner gave
him the amount of US$100,000.00 in his mother’s house.52 He claimed that no remittance business
was started in Hong Kong as they had no license, equipment, personnel and money to operate the
same.53 Upon his return to the Philippines, petitioner never asked him about the business as she
never gave him such amount.54 In October 2002, he intimated that he and petitioner even went to
Hong Kong again to buy some goods for the latter’s boutique.55 He admitted that he loved petitioner
and her children very much as there was a time when petitioner’s finances were short, he gave her
₱600,000.00 for the enrollment of her children in very expensive schools.56 It is also not true that he
and Ramon initiated the Hong Kong and Bangkok trips.57

Ramon testified that it was his brother respondent who introduced petitioner to him.58 He learned of
petitioner’s plan of a remittance business in July 2001 and even told her that they should study it
first.59 He was introduced to Roy Singun who operates a remittancebusiness in Pasay and who
suggested that their group observehis remittance business in Palau. After their Palau trip, petitioner
decided to put up a similar business in Hong Kong and it was him who suggested to use
respondent’s name because of name recall.60 It was decided thathe would manage the operation in
Manila and respondent would be in charge of promotion and marketing in Hong Kong, while
petitioner would be in charge of all the business finances.61 He admitted that he wentto Hong Kong
with petitioner and her mother to register said business and also to buy goods for petitioner’s
boutique.62 He said that it was also impossible for Chau to offer a part of his office building for the
remittance business because there was no more space to accommodate it.63 He and respondent
went to Hong Kong in May 2002 to examine the office recommended by Chau and the warehouse of
Rudy Fernandez thereatwho also offered to help.64 He then told Chau that the remittance office
should be in Central Park, Kowloon, because majority of the Filipinos in Hong Kong live there.65 He
concluded that it was impossible for the business to operate immediately because they had no
office, no personnel and no license permit.66 He further claimed that petitioner never mentioned to
him about the US$100,000.00 she gave to respondent,67 and that he even traveled again with
petitioner to Bangkok in October 2002, and in August 2003.68 He denied Enrico’s allegation that he
saw him at his mother’s house as he only saw Enrico for the first time in court.69

On April 21, 2006, the RTC rendered a Decision,70 the dispositive portion of which reads:
WHEREFORE, accused PHILLIP SALVADOR is found GUILTY beyond reasonable doubt of the
crime ofEstafa under Article 315, par. 2 (a) of the Revised Penal Code and is hereby sentenced to
suffer the indeterminate sentence of four (4) years, two (2) months and one (1) day of prisyon (sic)
correctional (sic)maximum as minimum to twenty (20) years of reclusion temporal maximumas
maximum and to indemnify the private complainant in the amount of ONE HUNDRED THOUSAND
DOLLARS (US$100,000.00) or its equivalent in Philippine currency. With respect to accused
RAMON SALVADOR, he is ACQUITTED for insufficiency of evidence. SO ORDERED.71

Respondent appealed his conviction to the CA. The parties filed their respective pleadings, after
which, the case was submitted for decision.

On February 11, 2010, the CA rendered its Decision reversing the decision of the RTC, the decretal
portion of which reads:

WHEREFORE, premises considered, the appealed decision of Branch 202 of the RTC of Las Piñas
City, dated April 21, 2006, is hereby REVERSED AND SET ASIDE and accused appellant PHILLIP
R. SALVADOR is ACQUITTED of the crime of Estafa.72

Petitioner files the instant petition onthe civil aspect of the case alleging that:

THE TRIAL COURT WAS CORRECT IN CONVICTING THE RESPONDENT SO THAT EVEN IF
THE COURT OF APPEALS DECIDED TO ACQUIT HIM IT SHOULD HAVE AT LEAST RETAINED
THE AWARD OF DAMAGES TO THE PETITIONER.73

We find no merit in the petition.

To begin with, in Manantan v. CA,74 we discussed the consequences of an acquittal on the civil
liability of the accused as follows:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused.
First is an acquittal on the ground that the accused is not the author of the actor omission
complained of. This instance closes the door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can never be held liable for such act
oromission. There being no delict, civil liability ex delictois out of the question, and the civil action, if
any, which may be instituted must be based on grounds other than the delict complained of. This is
the situation contemplated in Rule III of the Rules of Court. The second instance is an acquittal
based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused
has not been satisfactorily established, he is not exempt from civil liability which may be proved by
preponderance of evidence only. This is the situation contemplated in Article 29 of the Civil Code,
where the civil action for damages is "for the same act or omission." x x x.75

A reading of the CA decision would show that respondent was acquitted because the prosecution
failed to prove his guilt beyond reasonable doubt. Said the CA:

The evidence for the prosecution being insufficient to prove beyond reasonable doubt that the crime
as charged had been committed by appellant, the general presumption, "that a person is innocent of
the crime or wrong, stands in his favor. The prosecution failed to prove that all the elements of estafa
are present in this case as would overcome the presumption of innocence in favor of appellant. For
in fact, the prosecution's primary witness herself could not even establish clearly and precisely how
appellant committed the alleged fraud. She failed to convince us that she was deceived through
misrepresentations and/or insidious actions, in venturing into a remittance business. Quite the
contrary, the obtaining circumstance inthis case indicate the weakness of her submissions.76

Thus, since the acquittal is based on reasonable doubt, respondent is not exempt from civil liability
which may be proved by preponderance of evidence only. In Encinas v. National Bookstore,
Inc.,77 we explained the concept of preponderance of evidence as follows:

x x x Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either
side and is usually considered to be synonymous with the term "greater weight of the evidence" or
"greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last
analysis, means probability of the truth. It is evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition thereto.78

The issue of whether petitioner gave respondent the amount of US$100,000.00 is factual. While we
are not a trier of facts, there are instances, however, when we are called upon to re-examine the
factual findings of the trial court and the Court of Appeals and weigh, after considering the records of
the case, which of the conflicting findings is more in accord with law and justice.79 Such is the case
before us.

In discrediting petitioner’s allegation that she gave respondent US$100,000.00 in May 2002, the CA
found that: (1) petitioner failed to show how she was able to raise the money in such a short period
of time and even gave conflicting versions on the source of the same; (2) petitioner failed to require
respondent to sign a receipt so she could have a record of the transaction and offered no plausible
reason why the money was allegedly hand-carried toHong Kong; (3) petitioner’s claim of trust as
reason for not requiring respondent to sign a receipt was inconsistent with the way she conducted
her previous transactions with him; and (4) petitioner’s behavior after the alleged fraud perpetrated
against her was inconsistent with the actuation ofsomeone who had been swindled.

We find no reversible error committed by the CA in its findings.

Petitioner failed to prove on how she raised the money allegedly given to respondent. She testified
that from December 2001 to May 2002, she was raising the amount of US$100,000.00 as the capital
for the actual operation of the Phillip Salvador Freight and Remittance International Limited in Hong
Kong,80 and that she was ableto raise the same in May 2002.81 She did so by selling82 or pawning83 her
pieces of diamond jewelry. However, there was no documentary evidence showing those
transactions within the period mentioned. Upon further questioning on cross-examination on where
she got the money, she then said that she had plenty of dollars as she is a frequent traveler to Hong
Kong and Bangkok to shop for her boutique in Glorietta and Star Mall.84 Such testimony contradicts
her claim that she was still raising the money for 5 months and that she was only able to formally
raise the money in May 2002.
There was also no receipt that indeed US$100,000.00 was given by petitioner to
respondent. Petitioner in her testimony, both in the direct and cross examinations, said that the
1âwphi1

US$100,000.00 given to respondent was for the actual expenses for setting up the office and the
operation of the business in Hong Kong.85 She claimed that she treated the freight and remittance
business like any of her businesses;86 that she, respondent, and the latter’s brother even agreed to
divide whatever profits they would have from the business;87 and that giving US$100,000.00 to
respondent was purely business to her.88 She also said that she kept records of all her business,
such that, if there are no records, there are no funds entrusted89 . Since petitioner admitted that
giving the money to respondent was for business, there must be some records ofsuch transaction as
what she did in her other businesses.

In fact, it was not unusual for petitioner to ask respondent for some documents evidencing the
latter's receipt of money for the purpose of business as this was done in her previous business
dealings with respondent. She had asked respondent to execute a real estate mortgage on his
condominium unit90 for the ₱5 million she loaned him in August 2001. Also, when petitioner gave
respondent an additional loan of ₱10 million in December 2001, for the latter to redeem the title to
his condominium unit from the bank, she had asked him to sign an acknowledgment receipt for the
total amount of ₱15 million he got from her.91 She had done all these despite her testimony that she
trusted respondent from the day they met in December 2000 until the day he ran away from her in
August 2003.92

Petitioner insists that she did not ask for any acknowledgment receipt from respondent, because the
latter told her not to have traces that she was giving money to him as it might jeopardize her then
ongoing annulment proceedings. However, petitioner's testimony would belie such claim of
respondent being cautious of the annulment proceedings. She declared that when she and her
husband separated, respondent stood as a father to her children.93 Respondent attended school
programs of her children,94 and fetched them from school whenever the driver was not around.95 In
fact, at the time the annulment case was already pending, petitioner registered the freight and
remittance business under respondent’s name and the local branch office of the business would be
in petitioner's condominium unit in Makati.96 Also, when petitioner went with her mother and Ramon
to Hong Kong to register the business, it was respondent who tookcare of her children. She
intimated that it was respondent who was insistent in going to their house.

Worthy to mention is that petitioner deposited the amount of ₱500,000.00 to respondent's account
with United Coconut Planters Bank (UCPB) in July 2003.97 Also, when respondent was in New York
in August 2003, petitioner sent him the amount of US$2,000.00 by telegraphic transfer.98 Petitioner's
act ofdepositing money to respondent's account contradicted her claim that there should be no
traces that she was giving money to respondent during the pendency of the annulment case.

Petitioner conceded that she could have either bought a manager's check in US dollars from the
bank orsend the money by bank transfer, but she did not do so on the claim that there might be
traces of the transaction.99 However, the alleged US$100,000.00was supposed to be given to
respondent because of the freight and remittance business; thus, there is nothing wrong to have a
record of the same, specially since respondent had to account for the valid expenseshe incurred with
the money.100

The testimony of Enrico, petitioner's brother, declaring that he was present when petitioner gave
respondent the US$100,000.00 did not help. Enrico testified that when petitioner filed the instant
case in September 2004, another case was also filed by petitioner against respondent and his
brother Ramon in the same City Prosecutor's office in Las Piñas where Enrico had submitted his
affidavit. Enrico did not submit an affidavit in this case even when he allegedly witnessed the giving
of the money to respondent as petitioner told him that he could just testify for the other case.
However, when the other case was dismissed, it was then that petitioner told him to be a witness in
this case. Enrico should have been considered at the first opportunity if he indeed had personal
knowledge of the alleged giving of money to respondent. Thus, presenting Enrico as a witness only
after the other case was dismissed would create doubt as to the veracity of his testimony.

WHEREFORE, the petition for review is DENIED. The Decision dated February 11, 2010, of the
Court of Appeals in CA-G.R. CR No. 30151, is hereby AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice

ARTURO D. BRION* MARTIN S. VILLARAMA, JR.**

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division
RULE 111 B: LIM VS KOU CO PING

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 175256 August 23, 2012

LILY LIM, Petitioner,

vs.
KOU CO PING a.k.a. CHARLIE CO, Respondent.

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

G.R. No. 179160

KOU CO PING a.k.a. CHARLIE CO, Petitioner,

vs.
LILY LIM, Respondent.

LEONARDO-DE CASTRO,*

PERLAS-BERNABE,**

DECISION

DEL CASTILLO, J.:

Is it forum shopping for a private complainant to pursue a civil complaint for specific performance
and damages, while appealing the judgment on the civil aspect of a criminal case for estafa?

Before the Court are consolidated Petitions for Review assailing the separate Decisions of the
Second and Seventeenth Divisions of the Court of Appeals (CA) on the above issue.

Lily Lim’s (Lim) Petition for Review1 assails the October 20, 2005 Resolution2 of the Second Division
in CA-G.R. CV No. 85138, which ruled on the above issue in the affirmative:

Due to the filing of the said civil complaint (Civil Case No. 5112396), Charlie Co filed the instant
motion to dismiss [Lily Lim’s] appeal, alleging that in filing said civil case, Lily Lim violated the rule
against forum shopping as the elements of litis pendentia are present.

This Court agrees.3

xxxx

IN VIEW OF THE FOREGOING, the appeal is DISMISSED.

SO ORDERED.4
On the other hand, Charlie Co’s (Co) Petition for Review5 assails the April 10, 2007 Decision6 of the
Seventeenth Division in CA-G.R. SP No. 93395 for ruling on the same issue in the negative:

We find no grave abuse of discretion committed by respondent judge. The elements of litis
pendentiaand forum-shopping were not met in this case.7

xxxx

WHEREFORE, in view of the foregoing, the instant petition is DENIED. This case is REMANDED to
the court of origin for further proceedings.

SO ORDERED.8

Factual Antecedents

In February 1999, FR Cement Corporation (FRCC), owner/operator of a cement manufacturing

plant, issued several withdrawal authorities9 for the account of cement dealers and traders, Fil-
Cement Center and Tigerbilt. These withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each withdrawal authority contained a
provision that it is valid for six months from its date of issuance, unless revoked by FRCC Marketing
Department.

Fil-Cement Center and Tigerbilt, through their administrative manager, Gail Borja (Borja), sold the
withdrawal authorities covering 50,000 bags of cement to Co for the amount of ₱ 3.15 million or ₱
63.00 per bag.10 On February 15, 1999, Co sold these withdrawal authorities to Lim allegedly at the
price of ₱ 64.00 per bag or a total of ₱ 3.2 million.11

Using the withdrawal authorities, Lim withdrew the cement bags from FRCC on a staggered basis.
She successfully withdrew 2,800 bags of cement, and sold back some of the withdrawal authorities,
covering 10,000 bags, to Co.

Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining 37,200 bags covered by
the withdrawal authorities. Lim clarified the matter with Co and Borja, who explained that the plant
implemented a price increase and would only release the goods once Lim pays for the price
difference or agrees to receive a lesser quantity of cement. Lim objected and maintained that the
withdrawal authorities she bought were not subject to price fluctuations. Lim sought legal recourse
after her demands for Co to resolve the problem with the plant or for the return of her money had
failed.

The criminal case

An Information for Estafa through Misappropriation or Conversion was filed against Co before
Branch 154 of the Regional Trial Court (RTC) of Pasig City. The accusatory portion thereof reads:

On or about between the months of February and April 1999, in San Juan, Metro Manila and within
the jurisdiction of this Honorable Court, the accused, with intent to defraud Lily Lim, with grave abuse
of confidence, with unfaithfulness, received in trust from Lily Lim cash money in the amount of ₱
2,380,800.00 as payment for the 37,200 bags of cement, under obligation to deliver the 37,200 bags
of cement to said Lily Lim, but far from complying with his obligation, misappropriated, misapplied
and converted to his own personal use and benefit the said amount of ₱ 2,300,800.00 [sic] and
despite demands, the accused failed and refused to return said amount, to the damage and
prejudice of Lily Lim in the amount of ₱ 2,380,800.00.

Contrary to Law.12

The private complainant, Lily Lim, participated in the criminal proceedings to prove her damages.
She prayed for Co to return her money amounting to ₱ 2,380,800.00, foregone profits, and legal
interest, and for an award of moral and exemplary damages, as well as attorney’s fees.13

On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its Order14 acquitting Co of the
estafa charge for insufficiency of evidence. The criminal court’s Order reads:

The first and second elements of the crime of estafa [with abuse of confidence under Article 315,
paragraph 1(b)] for which the accused is being charged and prosecuted were not established by the
prosecution’s evidence.

xxxx

In view of the absence of the essential requisites of the crime of estafa for which the accused is
being charged and prosecuted, as above discussed, the Court has no alternative but to dismiss the
case against the accused for insufficiency of evidence.15

WHEREFORE, in view of the foregoing, the Demurrer to Evidence is GRANTED, and the accused
is hereby ACQUITTED of the crime of estafa charged against him under the present information for
insufficiency of evidence.

Insofar as the civil liability of the accused is concerned, however, set this case for the reception of
his evidence on the matter on December 11, 2003 at 8:30 o’clock [sic] in the morning.

SO ORDERED.16

After the trial on the civil aspect of the criminal case, the Pasig City RTC also relieved Co of civil
liability to Lim in its December 1, 2004 Order.17 The dispositive portion of the Order reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered holding the accused CHARLIE
COnot civilly liable to the private complainant Lily Lim.

SO ORDERED.18

Lim sought a reconsideration of the above Order, arguing that she has presented preponderant
evidence that Co committed estafa against her.19

The trial court denied the motion in its Order20 dated February 21, 2005.

On March 14, 2005, Lim filed her notice of appeal21 on the civil aspect of the criminal case. Her
appeal was docketed as CA-G.R. CV No. 85138 and raffled to the Second Division of the CA.

The civil action for specific performance

On April 19, 2005, Lim filed a complaint for specific performance and damages before Branch 21 of
the RTC of Manila. The defendants in the civil case were Co and all other parties to the withdrawal
authorities, Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La Farge Corporation.
The complaint, docketed as Civil Case No. 05-112396, asserted two causes of action: breach of
contract and abuse of rights. Her allegations read:

ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION

xxxx

23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of cement of ₱ 64.00 per bag on
an x-plant basis within 3 months from the date of their transaction, i.e. February 15, 1999. Pursuant
to said agreement, Lily Lim paid Charlie Co ₱ 3.2 Million while Charlie Co delivered to Lily Lim FR
Cement Withdrawal Authorities representing 50,000 bags of cement.

24. The withdrawal authorities issued by FR Cement Corp. allowed the assignee or holder thereof to
withdraw within a six-month period from date a certain amount of cement indicated therein. The
Withdrawal Authorities given to Lily Lim were dated either 3 February 1999 or 23 February 1999.
The Withdrawal Authorities were first issued to Tigerbilt and Fil-Cement Center which in turn
assigned them to Charlie Co. Charlie Co then assigned the Withdrawal Authorities to Lily Lim on
February 15, 1999. Through these series of assignments, Lily Lim acquired all the rights (rights to
withdraw cement) granted in said Withdrawal Authorities.

25. That these Withdrawal Authorities are valid is established by the fact that FR Cement earlier
allowed Lily Lim to withdraw 2,800 bags of cement on the basis thereof.

26. However, sometime 19 April 1999 (within the three (3)-month period agreed upon by Charlie Co
and Lily Lim and certainly within the six (6)-month period indicated in the Withdrawal Authorities
issued by FR Cement Corp.), Lily Lim attempted but failed to withdraw the remaining bags of cement
on account of FR Cement’s unjustified refusal to honor the Withdrawal Authorities. x x x

xxxx

FIRST CAUSE OF ACTION:

BREACH OF CONTRACT

30. Charlie Co committed and is therefore liable to deliver to Lily Lim 37,200 bags of cement. If he
cannot, then he must pay her the current fair market value thereof.

31. FR Cement Corporation is also liable to deliver to Lily Lim the amount of cement as indicated in
the Withdrawal Authorities it issued. xxx FR Cement Corporation has no right to impose price
adjustments as a qualification for honoring the Withdrawal Authorities.

32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/ assignees of the Withdrawal
Authorities repeatedly assured Lily Lim that the same were valid and would be honored. They are
liable to make good on their assurances.

SECOND CAUSE OF ACTION:

ABUSE OF RIGHTS AND UNJUST ENRICHMENT
33. Charlie Co’s acts of falsely representing to Lily Lim that she may be able to withdraw the cement
from FR Cement Corp. caused Lily Lim to incur expenses and losses. Such act was made without
justice, without giving Lily Lim what is due her and without observing honesty and good faith, all
violative of the law, more specifically Articles 19 and 20 of the Civil Code. Such willful act was also
made by Charlie Co in a manner contrary to morals, good customs or public policy, in violation of
Article 21 of the Civil Code.

34. FR Cement Corporation’s unjust refusal to honor the Withdrawal Authorities they issued also
caused damage to Lily Lim. Further, FR Cement Corporation’s act of withholding the 37,200 bags of
cement despite earning income therefor constitutes as an unjust enrichment because FR Cement
Corporation acquired income through an act or performance by another or any other means at the
expense of another without just or legal ground in violation of Article 22 of the Civil Code.

35. Fil-Cement Center, Tigerbilt and Gail Borja’s false assurances that Lily Lim would be able to
withdraw the remaining 37,200 bags of cement caused Lily Lim to incur expenses and losses. x x x
Moreover, Fil-Cement Center admitted receiving payment for said amount of cement, thus they are
deemed to have come into possession of money at the expense of Lily Lim without just or legal
ground, in violation of Article 22 of the Civil Code.

THIRD CAUSE OF ACTION:

MORAL AND EXEMPLARY DAMAGES and
ATTORNEY’S FEES AND COSTS OF SUIT22

Lim prayed for Co to honor his contractual commitments either by delivering the 37,200 bags of
cement, making arrangements with FRCC to allow Lim to withdraw the cement, or to pay for their
value. She likewise asked that the defendants be held solidarily liable to her for the damages she
incurred in her failed attempts to withdraw the cement and for the damages they inflicted on her as a
result of their abuse of their rights.23

Motions to dismiss both actions

In reaction to the filing of the civil complaint for specific performance and damages, Co filed motions
to dismiss the said civil case24 and Lim’s appeal in the civil aspect of the estafa case or CA-G.R. CV
No. 85138.25 He maintained that the two actions raise the same issue, which is Co’s liability to Lim for
her inability to withdraw the bags of cement,26 and should be dismissed on the ground of lis
pendens and forum shopping.

Ruling of the Court of Appeals Second Division in CA-G.R CV No. 85138

The appellate court (Second Division) favorably resolved Co’s motion and dismissed Lim’s appeal
from the civil aspect of the estafa case. In its Resolution dated October 20, 2005, the CA Second
Division held that the parties, causes of action, and reliefs prayed for in Lim’s appeal and in her civil
complaint are identical. Both actions seek the same relief, which is the payment of the value of the
37,200 bags of cement.27 Thus, the CA Second Division dismissed Lim’s appeal for forum
shopping.28 The CA denied29 Lim’s motion for reconsideration.30

Lim filed the instant petition for review, which was docketed as G.R. No. 175256.

Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396
Meanwhile, the Manila RTC denied Co’s Motion to Dismiss in an Order31 dated December 6, 2005.
The Manila RTC held that there was no forum shopping because the causes of action invoked in the
two cases are different. It observed that the civil complaint before it is based on an obligation arising
from contract and quasi-delict, whereas the civil liability involved in the appeal of the criminal case
arose from a felony.

Co filed a petition for certiorari,32 docketed as CA-G.R. SP No. 93395, before the appellate court. He
prayed for the nullification of the Manila RTC’s Order in Civil Case No. 05-112396 for having been
issued with grave abuse of discretion.33

Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395

The CA Seventeenth Division denied Co’s petition and remanded the civil complaint to the trial court
for further proceedings. The CA Seventeenth Division agreed with the Manila RTC that the elements
of litis pendentia and forum shopping are not met in the two proceedings because they do not share
the same cause of action.34

The CA denied35 Co’s motion for reconsideration.36

Co filed the instant Petition for Review, which was docketed as G.R. No. 179160.

Upon Co’s motion,37 the Court resolved to consolidate the two petitions.38

Kou Co Ping’s arguments

Co maintains that Lim is guilty of forum shopping because she is asserting only one cause of action
in CA-G.R. CV No. 85138 (the appeal from the civil aspect of Criminal Case No. 116377) and in Civil
Case No. 05-112396, which is for Co’s violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that is, for Co to deliver the 37,200 bags of
cement or its value to Lim. That Lim utilized different methods of presenting her case – a criminal
action for estafa and a civil complaint for specific performance and damages – should not detract
from the fact that she is attempting to litigate the same cause of action twice.39

Co makes light of the distinction between civil liability ex contractu and ex delicto. According to him,
granting that the two civil liabilities are independent of each other, nevertheless, the two cases
arising from them would have to be decided using the same evidence and going over the same set
of facts. Thus, any judgment rendered in one of these cases will constitute res judicata on the other.40

In G.R. No. 179160, Co prays for the annulment of the CA Decision and Resolution in CA-G.R. SP
No. 93395, for a declaration that Lim is guilty of forum shopping, and for the dismissal of Civil Case
No. 05-112396.41

In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV No. 85138
(which dismissed Lim’s appeal from the trial court’s decision in Criminal Case No. 116377).42

Lily Lim’s arguments

Lim admits that the two proceedings involve substantially the same set of facts because they arose
from only one transaction.43 She is quick to add, however, that a single act or omission does not
always make a single cause of action.44 It can possibly give rise to two separate civil liabilities on the
part of the offender – (1) ex delicto or civil liability arising from crimes, and (2) independent civil
liabilities or those arising from contracts or intentional torts. The only caveat provided in Article 2177
of the Civil Code is that the offended party cannot recover damages twice for the same act or
omission.45 Because the law allows her two independent causes of action, Lim contends that it is not
forum shopping to pursue them.46

She then explains the separate and distinct causes of action involved in the two cases. Her cause of
action in CA-G.R CV No. 85138 is based on the crime of estafa. Co violated Lim’s right to be
protected against swindling. He represented to Lim that she can withdraw 37,200 bags of cement
using the authorities she bought from him. This is a fraudulent representation because Co knew, at
the time that they entered into the contract, that he could not deliver what he promised.47 On the other
hand, Lim’s cause of action in Civil Case No. 05-112396 is based on contract. Co violated Lim’s
rights as a buyer in a contract of sale. Co received payment for the 37,200 bags of cement but did
not deliver the goods that were the subject of the sale.48

In G.R. No. 179160, Lim prays for the denial of Co’s petition.49 In G.R. No. 175256, she prays for the
reversal of the CA Decision in CA-G.R. CV No. 85138, for a declaration that she is not guilty of
forum shopping, and for the reinstatement of her appeal in Criminal Case No. 116377 to the CA.50

Issue

Did Lim commit forum shopping in filing the civil case for specific performance and damages during
the pendency of her appeal on the civil aspect of the criminal case for estafa?

Our Ruling

A single act or omission that causes damage to an offended party may give rise to two separate civil
liabilities on the part of the offender51 (1) civil liability ex delicto, that is, civil liability arising from the
criminal offense under Article 100 of the Revised Penal Code,-52 and (2) independent civil liability,
that is, civil liability that may be pursued independently of the criminal proceedings. The independent
civil liability may be based on "an obligation not arising from the act or omission complained of as a
felony," as provided in Article 31 of the Civil Code (such as for breach of contract or for tort53 ). It may
also be based on an act or omission that may constitute felony but, nevertheless, treated
independently from the criminal action by specific provision of Article 33 of the Civil Code ("in cases
of defamation, fraud and physical injuries").

The civil liability arising from the offense or ex delicto is based on the acts or omissions that
constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. For
this reason, the civil liability ex delicto is impliedly instituted with the criminal offense.54 If the action for
the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its
proceedings are suspended until the final outcome of the criminal action.55 The civil liability based on
delict is extinguished when the court hearing the criminal action declares that "the act or omission
from which the civil liability may arise did not exist."56

On the other hand, the independent civil liabilities are separate from the criminal action and may be
pursued independently, as provided in Articles 31 and 33 of the Civil Code, which state that:

ART. 31. When the civil action is based on an obligation not arising from the act or omission
complained of as a felony, such civil action may proceed independently of the criminal proceedings
and regardless of the result of the latter. (Emphasis supplied.)

ART. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence. (Emphasis supplied.)

Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds
that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively,
without offending the rules on forum shopping, litis pendentia, or res judicata.57 As explained
in Cancio, Jr. v. Isip:58

One of the elements of res judicata is identity of causes of action. In the instant case, it must be
stressed that the action filed by petitioner is an independent civil action, which remains separate and
distinct from any criminal prosecution based on the same act. Not being deemed instituted in the
criminal action based on culpa criminal, a ruling on the culpability of the offender will have no
bearing on said independent civil action based on an entirely different cause of action, i.e., culpa
contractual.

In the same vein, the filing of the collection case after the dismissal of the estafa cases against the
offender did not amount to forum-shopping. The essence of forum shopping is the filing of multiple
suits involving the same parties for the same cause of action, either simultaneously or successively,
to secure a favorable judgment. Although the cases filed by [the offended party] arose from the
same act or omission of [the offender], they are, however, based on different causes of action. The
criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored
on culpa contractual. Moreover, there can be no forum-shopping in the instant case because the law
expressly allows the filing of a separate civil action which can proceed independently of the criminal
action.59

Since civil liabilities arising from felonies and those arising from other sources of obligations are
authorized by law to proceed independently of each other, the resolution of the present issue hinges
on whether the two cases herein involve different kinds of civil obligations such that they can
proceed independently of each other. The answer is in the affirmative.

The first action is clearly a civil action ex delicto, it having been instituted together with the criminal
action.60

On the other hand, the second action, judging by the allegations contained in the complaint,61 is a civil
action arising from a contractual obligation and for tortious conduct (abuse of rights). In her civil
complaint, Lim basically alleges that she entered into a sale contract with Co under the following
terms: that she bought 37,200 bags of cement at the rate of ₱ 64.00 per bag from Co; that, after full
payment, Co delivered to her the withdrawal authorities issued by FRCC corresponding to these
bags of cement; that these withdrawal authorities will be honored by FRCC for six months from the
dates written thereon. Lim then maintains that the defendants breached their contractual obligations
to her under the sale contract and under the withdrawal authorities; that Co and his co-defendants
wanted her to pay more for each bag of cement, contrary to their agreement to fix the price at ₱
64.00 per bag and to the wording of the withdrawal authorities; that FRCC did not honor the terms of
the withdrawal authorities it issued; and that Co did not comply with his obligation under the sale
contract to deliver the 37,200 bags of cement to Lim. From the foregoing allegations, it is evident
that Lim seeks to enforce the defendants’ contractual obligations, given that she has already
performed her obligations. She prays that the defendants either honor their part of the contract or
pay for the damages that their breach has caused her.

Lim also includes allegations that the actions of the defendants were committed in such manner as
to cause damage to Lim without regard for morals, good customs and public policy. These
allegations, if proven, would constitute tortious conduct (abuse of rights under the Human Relations
provisions of the Civil Code).

Thus, Civil Case No. 05-112396 involves only the obligations arising from contract and from tort,
whereas the appeal in the estafa case involves only the civil obligations of Co arising from the
offense charged. They present different causes of action, which under the law, are considered
"separate, distinct, and independent"62 from each other. Both cases can proceed to their final
adjudication, subject to the prohibition on double recovery under Article 2177 of the Civil Code.63

WHEREFORE, premises considered, Lily Lim’s Petition in G.R. No. 175256 is GRANTED. The
assailed October 20, 2005 Resolution of the Second Division of the Court of Appeals in CA-G.R. CV
No. 85138 is REVERSED and SET ASIDE. Lily Lim’s appeal in CA-G.R. CV No. 85138 is
ordered REINSTATED and the Court of Appeals is DIRECTED to RESOLVE the same
with DELIBERATE DISPATCH.

Charlie Co’s Petition G.R. No. 179160 is DENIED. The assailed April 10, 2007 Decision of the
Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 93395 is AFFIRMED in toto.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
Acting Chairperson

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
Acting Chairperson
RULE 111 C: CASUPANAN VS LAROYA

THIRD DIVISION

[G.R. No. 145391. August 26, 2002]

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs.

MARIO LLAVORE LAROYA, respondent.

DECISION
CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside the Resolution [1] dated
December 28, 1999 dismissing the petition for certiorari and the Resolution[2] dated
August 24, 2000 denying the motion for reconsideration, both issued by the Regional
Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario Llavore Laroya (Laroya for brevity)
and the other owned by petitioner Roberto Capitulo (Capitulo for brevity) and driven by
petitioner Avelino Casupanan (Casupanan for brevity), figured in an accident. As a
result, two cases were filed with the Municipal Circuit Trial Court (MCTC for brevity) of
Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence
resulting in damage to property, docketed as Criminal Case No. 002-99. On the other
hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict,
docketed as Civil Case No. 2089.
When the civil case was filed, the criminal case was then at its preliminary
investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil
case on the ground of forum-shopping considering the pendency of the criminal case.
The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil
case.
On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case
is a separate civil action which can proceed independently of the criminal case. The
MCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupanan
and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court
(Capas RTC for brevity) of Capas, Tarlac, Branch 66, [3] assailing the MCTCs Order of
dismissal.

The Trial Courts Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petition
for certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issued by
the MCTC is a final order which disposes of the case and therefore the proper remedy
should have been an appeal. The Capas RTC further held that a special civil action for
certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even
on the premise that the MCTC erred in dismissing the civil case, such error is a pure
error of judgment and not an abuse of discretion.
Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC
denied the same in the Resolution of August 24, 2000.
Hence, this petition.

The Issue

The petition premises the legal issue in this wise:

In a certain vehicular accident involving two parties, each one of them may think and
believe that the accident was caused by the fault of the other. x x x [T]he first party,
believing himself to be the aggrieved party, opted to file a criminal case for reckless
imprudence against the second party. On the other hand, the second party, together
with his operator, believing themselves to be the real aggrieved parties, opted in turn
to file a civil case for quasi-delict against the first party who is the very private
complainant in the criminal case. [4]

Thus, the issue raised is whether an accused in a pending criminal case for
reckless imprudence can validly file, simultaneously and independently, a separate civil
action for quasi-delict against the private complainant in the criminal case.

The Courts Ruling

Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC
dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal
case. Casupanan and Capitulo argue that if the accused in a criminal case has a
counterclaim against the private complainant, he may file the counterclaim in a separate
civil action at the proper time. They contend that an action on quasi-delict is different
from an action resulting from the crime of reckless imprudence, and an accused in a
criminal case can be an aggrieved party in a civil case arising from the same incident.
They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can
proceed independently of the criminal action. Finally, they point out that Casupanan was
not the only one who filed the independent civil action based on quasi-delict but also
Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case.
In his Comment, Laroya claims that the petition is fatally defective as it does not
state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited
their right to question the order of dismissal when they failed to avail of the proper
remedy of appeal. Laroya argues that there is no question of law to be resolved as the
order of dismissal is already final and a petition for certiorari is not a substitute for a
lapsed appeal.
In their Reply, Casupanan and Capitulo contend that the petition raises the legal
question of whether there is forum-shopping since they filed only one action - the
independent civil action for quasi-delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the ground of forum-
shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not
state in its order of dismissal[5] that the dismissal was with prejudice. Under the
Administrative Circular, the order of dismissal is without prejudice to refiling the
complaint, unless the order of dismissal expressly states it is with prejudice.[6] Absent a
declaration that the dismissal is with prejudice, the same is deemed without
prejudice. Thus, the MCTCs dismissal, being silent on the matter, is a dismissal without
prejudice.
Section 1 of Rule 41[7] provides that an order dismissing an action without prejudice
is not appealable. The remedy of the aggrieved party is to file a special civil action
under Rule 65.Section 1 of Rule 41 expressly states that where the judgment or final
order is not appealable, the aggrieved party may file an appropriate special civil action
under Rule 65. Clearly, the Capas RTCs order dismissing the petition for certiorari, on
the ground that the proper remedy is an ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or successively, to secure a
favorable judgment.[8] Forum-shopping is present when in the two or more cases
pending, there is identity of parties, rights of action and reliefs sought. [9] However, there
is no forum-shopping in the instant case because the law and the rules expressly allow
the filing of a separate civil action which can proceed independently of the criminal
action.
Laroya filed the criminal case for reckless imprudence resulting in damage to
property based on the Revised Penal Code while Casupanan and Capitulo filed the civil
action for damages based on Article 2176 of the Civil Code. Although these two actions
arose from the same act or omission, they have different causes of action. The criminal
case is based on culpa criminal punishable under the Revised Penal Code while the
civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the
Civil Code. These articles on culpa aquiliana read:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for the same act or omission of
the defendant.

Any aggrieved person can invoke these articles provided he proves, by

preponderance of evidence, that he has suffered damage because of the fault or
negligence of another. Either the private complainant or the accused can file a separate
civil action under these articles. There is nothing in the law or rules that state only the
private complainant in a criminal case may invoke these articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal
Procedure (2000 Rules for brevity) expressly requires the accused to litigate his
counterclaim in a separate civil action, to wit:

SECTION 1. Institution of criminal and civil actions. (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in

the criminal case, but any cause of action which could have been the subject thereof
may be litigated in a separate civil action. (Emphasis supplied)

Since the present Rules require the accused in a criminal action to file his counterclaim
in a separate civil action, there can be no forum-shopping if the accused files such
separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure (1985 Rules for
brevity), as amended in 1988, allowed the filing of a separate civil action independently
of the criminal action provided the offended party reserved the right to file such civil
action. Unless the offended party reserved the civil action before the presentation of the
evidence for the prosecution, all civil actions arising from the same act or omission were
deemed impliedly instituted in the criminal case. These civil actions referred to the
recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the
recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human
Relations.
Thus, to file a separate and independent civil action for quasi-delict under the 1985
Rules, the offended party had to reserve in the criminal action the right to bring such
action.Otherwise, such civil action was deemed impliedly instituted in the criminal
action. Section 1, Rule 111 of the 1985 Rules provided as follows:

Section 1. Institution of criminal and civil actions. When a criminal action is

instituted, the civil action for the recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives the action, reserves his right to
institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines
arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the
reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before
the prosecution starts to present its evidence and under circumstances affording the
offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission
of the accused.

x x x. (Emphasis supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and
now provides as follows:

SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before
the prosecution starts presenting its evidence and under circumstances affording the
offended party a reasonable opportunity to make such reservation.

xxx

(b) x x x

Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with the
court trying the latter case. If the application is granted, the trial of both actions shall
proceed in accordance with section 2 of this rule governing consolidation of the civil
and criminal actions. (Emphasis supplied)

Under Section 1 of the present Rule 111, what is deemed instituted with the criminal
action is only the action to recover civil liability arising from the crime or ex-delicto. All
the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer
deemed instituted, and may be filed separately and prosecuted independently even
without any reservation in the criminal action. The failure to make a reservation in the
criminal action is not a waiver of the right to file a separate and independent civil action
based on these articles of the Civil Code.The prescriptive period on the civil actions
based on these articles of the Civil Code continues to run even with the filing of the
criminal action. Verily, the civil actions based on these articles of the Civil Code are
separate, distinct and independent of the civil action deemed instituted in the criminal
action.[10]
Under the present Rule 111, the offended party is still given the option to file a
separate civil action to recover civil liability ex-delicto by reserving such right in the
criminal action before the prosecution presents its evidence. Also, the offended party is
deemed to make such reservation if he files a separate civil action before filing the
criminal action. If the civil action to recover civil liability ex-delicto is filed separately but
its trial has not yet commenced, the civil action may be consolidated with the criminal
action. The consolidation under this Rule does not apply to separate civil actions arising
from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil
Code.[11]
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if
reserved in the criminal action, could not be filed until after final judgment was rendered
in the criminal action. If the separate civil action was filed before the commencement of
the criminal action, the civil action, if still pending, was suspended upon the filing of the
criminal action until final judgment was rendered in the criminal action. This rule applied
only to the separate civil action filed to recover liability ex-delicto. The rule did not apply
to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code,
which could proceed independently regardless of the filing of the criminal action.
The amended provision of Section 2, Rule 111 of the 2000 Rules continues this
procedure, to wit:

SEC. 2. When separate civil action is suspended. After the criminal action has been
commenced, the separate civil action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted,
the latter shall be suspended in whatever stage it may be found before judgment on
the merits. The suspension shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on the merits is rendered in the civil
action, the same may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the offended party in the criminal case and
of the parties to present additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription
of the civil action which cannot be instituted separately or whose proceeding has been
suspended shall be tolled.

x x x. (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate
civil action, filed to recover damages ex-delicto, is suspended upon the filing of the
criminal action.Section 2 of the present Rule 111 also prohibits the filing, after
commencement of the criminal action, of a separate civil action to recover damages ex-
delicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and Capitulo, who are not the
offended parties in the criminal case, can file a separate civil action against the offended
party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

SEC 3. When civil action may proceed independently. - In the cases provided in
Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent
civil action may be brought by the offendedparty. It shall proceed independently of
the criminal action and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same act or omission
charged in the criminal action. (Emphasis supplied)

Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules,
expressly allows the offended party to bring an independent civil action under Articles
32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111,
this civil action shall proceed independently of the criminal action and shall require only
a preponderance of evidence.In no case, however, may the offended party recover
damages twice for the same act or omission charged in the criminal action.
There is no question that the offended party in the criminal action can file an
independent civil action for quasi-delict against the accused. Section 3 of the present
Rule 111 expressly states that the offended party may bring such an action but the
offended party may not recover damages twice for the same act or omission charged in
the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in the
criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs.
Cantos[12] where the Court held that the accused therein could validly institute a
separate civil action for quasi-delict against the private complainant in the criminal
case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaim
for malicious prosecution. At that time the Court noted the absence of clear-cut rules
governing the prosecution on impliedly instituted civil actions and the necessary
consequences and implications thereof. Thus, the Court ruled that the trial court
should confine itself to the criminal aspect of the case and disregard any counterclaim
for civil liability. The Court further ruled that the accused may file a separate civil case
against the offended party after the criminal case is terminated and/or in accordance
with the new Rules which may be promulgated. The Court explained that a cross-claim,
counterclaim or third-party complaint on the civil aspect will only unnecessarily
complicate the proceedings and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules
precisely to address the lacuna mentioned in Cabaero. Under this provision, the
accused is barred from filing a counterclaim, cross-claim or third-party complaint in the
criminal case. However, the same provision states that any cause of action which could
have been the subject (of the counterclaim, cross-claim or third-party complaint) may be
litigated in a separate civil action. The present Rule 111 mandates the accused to file
his counterclaim in a separate civil action which shall proceed independently of the
criminal action, even as the civil action of the offended party is litigated in the criminal
action.
Conclusion
Under Section 1 of the present Rule 111, the independent civil action in Articles 32,
33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but
may be filed separately by the offended party even without reservation. The
commencement of the criminal action does not suspend the prosecution of the
independent civil action under these articles of the Civil Code. The suspension in
Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if
such civil action is reserved or filed before the commencement of the criminal action.
Thus, the offended party can file two separate suits for the same act or
omission. The first a criminal case where the civil action to recover civil liability ex-
delicto is deemed instituted, and the other a civil case for quasi-delict - without violating
the rule on non-forum shopping. The two cases can proceed simultaneously and
independently of each other. The commencement or prosecution of the criminal action
will not suspend the civil action for quasi-delict. The only limitation is that the offended
party cannot recover damages twice for the same act or omission of the defendant. In
most cases, the offended party will have no reason to file a second civil action since he
cannot recover damages twice for the same act or omission of the accused. In some
instances, the accused may be insolvent, necessitating the filing of another case
against his employer or guardians.
 Similarly, the accused can file a civil action for quasi-delict for the same act or
omission he is accused of in the criminal case. This is expressly allowed in paragraph 6,
Section 1 of the present Rule 111 which states that the counterclaim of the
accused may be litigated in a separate civil action. This is only fair for two
reasons. First, the accused is prohibited from setting up any counterclaim in the civil
aspect that is deemed instituted in the criminal case. The accused is therefore forced to
litigate separately his counterclaim against the offended party. If the accused does not
file a separate civil action for quasi-delict, the prescriptive period may set in since the
period continues to run until the civil action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke Article 2177
of the Civil Code, in the same way that the offended party can avail of this remedy
which is independent of the criminal action. To disallow the accused from filing a
separate civil action for quasi-delict, while refusing to recognize his counterclaim in the
criminal case, is to deny him due process of law, access to the courts, and equal
protection of the law.
Thus, the civil action based on quasi-delict filed separately by Casupanan and
Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the
ground of forum-shopping is erroneous.
We make this ruling aware of the possibility that the decision of the trial court in the
criminal case may vary with the decision of the trial court in the independent civil
action. This possibility has always been recognized ever since the Civil Code introduced
in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of
the Code. But the law itself, in Article 31 of the Code, expressly provides that the
independent civil action may proceed independently of the criminal proceedings and
regardless of the result of the latter. In Azucena vs. Potenciano,[13] the Court declared:

x x x. There can indeed be no other logical conclusion than this, for to subordinate the
civil action contemplated in the said articles to the result of the criminal prosecution
whether it be conviction or acquittal would render meaningless the independent
character of the civil action and the clear injunction in Article 31 that this action 'may
proceed independently of the criminal proceedings and regardless of the result of the
latter.

More than half a century has passed since the Civil Code introduced the concept of
a civil action separate and independent from the criminal action although arising from
the same act or omission. The Court, however, has yet to encounter a case of
conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and
the other the civil action for quasi-delict. The fear of conflicting and irreconcilable
decisions may be more apparent than real. In any event, there are sufficient remedies
under the Rules of Court to deal with such remote possibilities.
One final point. The Revised Rules on Criminal Procedure took effect on December
1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before
the amendment of the rules. The Revised Rules on Criminal Procedure must be given
retroactive effect considering the well-settled rule that -
x x x statutes regulating the procedure of the court will be construed as applicable to
actions pending and undetermined at the time of their passage. Procedural laws are
retroactive in that sense and to that extent.
[14]

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The

Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No.
17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED.
SO ORDERED.
Puno, (Chairman), Panganiban, JJ., concur.
Sandoval-Gutierrez, J., on leave.
RULE 111 D: PEOPLE VS ROMERO 306 SCRA 90

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 103385-88 July 26, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELMA ROMERO y CRUZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose V. Juan, Bartolome P. Reus and Antonietta Pablo Medina for accused-appellant.

NOCON, J.:

This is an appeal from a Joint Decision 1 of the Regional Trial Court of Pasig, Branch 168 in Criminal
Cases Nos. 78507-10 2 finding accused-appellant Elma Romero y Cruz guilty beyond reasonable
doubt of the crimes of ESTAFA and ILLEGAL RECRUITMENT.

Two (2) separate Informations were filed by Assistant Fiscal Edmundo O. Legaspi in behalf of
complainant Doriza Dapnit against Elma Romero for the crimes of ESTAFA and ILLEGAL
RECRUITMENT committed as follows:

CRIMINAL CASE NO. 78507 — ESTAFA

That sometime during the month of January, 1989, in the Municipality of

Mandaluyong, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and
feloniously defraud one Doriza Dapnit of the amount of P21,000.00, by means of
deceit and false representations which she made to the latter to the effect that she
could Facilitate the employment overseas of said Doriza Dapnit, and would need
certain amount for expenses in the processing of her employment and travel papers,
which representation the accused well knew were false and fraudulent and were only
made by her to induce said Doriza Dapnit to give and pay, as the latter gave and
paid to her the amount of P21,000.00 which the accused once in possession of the
said amount, misappropriate, misapply and convert to her own personal use and
benefit, to the damage and prejudice of said Doriza Dapnit, in the aforementioned
amount of P21,000.00. 3
 CRIMINAL CASE NO. 78510 — ILLEGAL RECRUITMENT

That in or about and during period comprised from January, 1989, up to February,
1989, in the Municipality of Mandaluyong, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused, knowing that she was
neither authorized nor licensed by the Philippine Overseas Employment Agency, did
then and there willfully, unlawfully and feloniously recruit workers for overseas
employment and collect from the following persons, to wit:

Doriza Dapnit P21,000.00

Bernardo T. Salazar 24,000.00
Richard Quillope 15,600.00

by falsely representing to the latter that she was a lawful recruiter and in a position to
obtain for their job placement abroad. 4

Upon arraignment, accused Elma Romero pleaded "NOT GUILTY" and trial ensued.

The facts as found by the trial court are as follows:

Sometime in January of 1989, complainant Doriza Dapnit went to the residence of accused-
appellant Elma Romero at Esteban Street, Mandaluyong, Metro-Manila accompanied by Genalie
Cruz, a cousin of accused-appellant. At such meeting, complainant Doriza Dapnit told accused-
appellant of her desire to work abroad and the latter informed her that she can work in Taiwan as a
factory worker with a monthly salary of US$5,000.00.5

Thereafter, complainant Doriza Dapnit, relying upon the representation of the accused-appellant that
she can leave on April 1, 1989 for Taiwan as a factory worker, paid the placement fee charged by
the latter as evidenced by the receipts issued by the accused-appellant totalling P21,000.00 which
were paid as follows: P3,000.00 on January 24, 1989 6, P15,000.00 on February 4, 1989 7 and
P3,000.00 on February 27, 1989. 8 Complainant Doriza Dapnit also paid accused-appellant the
amount of P1,800.00 for the processing of her passport which is not included in her claim as she
was issued a passport.9

When complainant Doriza Dapnit was not able to leave on April 1, 1989 for Taiwan, accused-
appellant told her, to wait as her visa was not yet issued. However, after spending more than two (2)
months futilely following up her visa with the accused-appellant, complainant Doriza Dapnit went to
the office of the Philippine Overseas Employment Administration (POEA) and found out that
accused-appellant is not a licensed recruiter as shown by the Certification issued by the POEA. 10

On June 30, 1989, complainant Doriza Dapnit executed an affidavit 11 at the office of the POEA
charging accused-appellant for illegal recruitment and/or estafa.

Complainant Bernardo Salazar testified that sometime in the middle of January 1989, he went to RSI
Enterprises located at Shaw Boulevard, Mandaluyong, Metro-Manila and met accused-appellant
where he applied for a job in Taiwan. During said meeting, accused-appellant promised complainant
Bernardo Salazar that he can leave for Taiwan on April 1, 1989 as a factory worker with a monthly
salary of US$600.00 12 as soon as he paid the placement fee.

After paying accused-appellant the amount of P24,000.00 as placement fee which were evidenced
by the five (5) receipts 13 issued by accused-appellant, complainant Bernardo Salazar was not able to
leave on April 1, 1989 and accused-appellant told him that his departure was delayed because she
is still waiting for the issuance of his visa.

When accused-appellant failed to send complainant Bernardo Salazar to Taiwan, the latter went to
the Anti-illegal Recruitment Branch of the POEA on June 30, 1989 and executed an
affidavit 14 charging accused-appellant for illegal recruitment and/or estafa.

When complainant Richard Quillope was presented to the court and sworn in, prosecution's counsel
manifested that complainant Quillope will testify to the following:

. . ., that on January 25, 1989, Elma Romero made representation to him as having
capacity to send workers abroad, overseas workers abroad. As made by Elma
Romero that she has the capacity of sending overseas workers abroad he paid the
following amount, first, in the amount of P3,000.00 dated March 10, 1989, second
payment, dated January 10, 1989 in the amount of P10,000.00; third in the amount of
P1,600.00 dated February 17, 1989. That all these receipts except that amount of
P1,000.00 are for processing fee for visa for Taipeh. That this witness was not able
to go or was deployed as promised by the accused, he found out that she was not
licensed nor engaged in the recruitment of overseas employment. That there was
representation made by Elma Romero that this witness will be sent abroad as factory
worker in Taipeh or Taiwan. 15

to which accused-appellant's counsel did not object when he admitted said manifestation in court, as
follows:

ATTY. JAKOSALEM:

We have no objection and we admit the testimony of the witness. So,

we can dispense with the cross-examination of the said witness.

COURT:

He (We) dispensed with the cross-examination of the witness. 16

On January 18, 1990, the trial court issued an Order 17 dismissing Criminal Cases Nos. 78508 and
78509 on the basis of the Joint Affidavit of Desistance 18 executed by complainants Richard Quillope
and Bernardo Salazar on December 14, 1989.

On August 8, 1991, the trial court rendered its Joint Decision, the dispositive portion of which reads
as follows:

WHEREFORE, finding the accused ELMA ROMERO guilty beyond reasonable doubt
of the crime of Estafa, the Court hereby sentences her to suffer penalty of
imprisonment of one (1) year, 8 months and 21 days of prision correccional as
MINIMUM to 5 years, 5 months and 11 days of prision correccional the as MAXIMUM
and to indemnify complainant Doriza Dapnit the sum of P21,000.00;

Finding the accused ELMA ROMERO guilty beyond reasonable doubt of the crime of
Illegal Recruitment constituting economic sabotage, the Court hereby sentences her
to suffer the penalty of life imprisonment (reclusion perpetua) and a fine of One
Hundred Thousand Pesos (P100,000.00). 19
Hence, this appeal.

Accused-appellant contends that there was no misrepresentation nor misappropriation on her part
because the money paid by complainant Doriza Dapnit was for the purpose of facilitating the
processing of the latter's passport and visa only as indicated in the receipts issued to the
complainant and not in consideration of a promised job placement abroad.

We do not agree.

The elements of estafa in general are: (1) that the accused defrauded another (a) by abuse of
confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary
estimation is caused to the offended party or third person. 20

In the instant case, all the elements of estafa are present because complainant Doriza Dapnit gave
the total amount of P21,000.00 to accused-appellant on the latter's promise that she will be sent to
Taiwan as a factory worker as soon as she paid the placement fee. It will be observed that accused-
appellant gave complainant the distinct impression that she had the power or ability to send people
abroad for work so that complainant was convinced to give her the money she demanded to enable
her to be employed as a factory worker in Taiwan. Furthermore, accused-appellant's defense that
she did not misrepresent herself as capable of finding complainant Doriza Dapnit employment
abroad is negated by the latter's testimony when she testified that:

Q Did you have any conversation with Elma Romero?

A Yes, sir.

Q What was your conversation about, will you tell the Court?

A She told me that I could be deployed as one of the factory workers

in Taiwan.

Q Did you ask her how much would be your salary if you will be
deployed as one of the factory workers in Taiwan?

A Yes. sir.

Q How much?

A US$5,000.00.

xxx xxx xxx

Q Was there any consideration for your employment abroad as

promised by Elma Romero?

xxx xxx xxx

For the promise to be deployed as factory worker in Taiwan?

A She told me that I will have to pay the full payment.

 Q How much was the full payment as told to you by Elma Romero?

A P21,000.00.

Q Were you able to pay this full amount of P21,000.00?

A Yes, sir.

xxx xxx xxx

Q Do you have receipt corresponding to that payment?

A Yes, sir. 21

From the foregoing testimony, accused-appellant cannot claim that complainant paid her only for the
processing of her travel documents and not in consideration of finding a job for her in Taiwan. Thus,
accused-appellant is guilty of the crimes of estafa and illegal recruitment.

The contention of the accused-appellant that she cannot be convicted of large-scale illegal
recruitment which requires at least (3) persons to be victimized considering that only one victim
testified against her while the other two complainants executed a joint affidavit of desistance which
resulted in the dismissal of their complaints against her is without merit.

The records show that aside from complainant Doriza Dapnit, complainant Bernardo Salazar and
Richard Quillope testified that they were both victims of accused-appellant's illegal recruitment
activities. Bernardo Salazar's testimony is as follows:

Q And at the middle part of January 1989 where did you see Elma
Romero?

A At the RSI Enterprises, sir.

Q What was your purpose in going to RSI Enterprises?

A My purpose in going to her office is to apply for employment

abroad.

xxx xxx xxx

Q Were you able to talk with Elma Romero with respect to your
employment abroad as factory worker in Taiwan?

A Yes, sir.

Q What was the result of that conversation?

A Elma Romero promised us employment in Taiwan, sir?

Q Did Elma Romero mentioned (sic) about your salary?

A Yes, sir.

Q How much is the salary?

A Six hundred dollars ($600.000), sir.

Q After the meeting with Elma Romero and she promised you that
she will sent (sic) you to Taiwan, what transpired after that?

A Elma Romero promised us that we could leave for abroad and from
April 1 we were told to wait up to April 4, sir.

Q Were you able to live (sic) on April 4?

A No, sir.

xxx xxx xxx

Q How much was the placement fee?

A Eighteen thousand pesos, sir. (18,000.00).

Q Did you give this eighteen thousand (P18,000.00) pesos to Elma

Romero?

A Yes, sir.

Q Was there any receipt of your P18,000.00 that you give to Elma
Romero?

A Yes, sir.

xxx xxx xxx

Q After you have pay (sic) the P18,000.00 to Elma Romero what
transpired next?

A We keep (sic) on talking to Elma Romero, sir.

Q Do you have any companion, Mr. Witness in applying for

employment abroad?

A Yes, sir.

Q Will you please tell the Honorable Court who are your companion
(sic) you are referring to?

A My other companions are Richard Quillope and Doriza Dapnit, sir.

xxx xxx xxx

 Q When you were not able to leave for Taiwan, what did you do next?

A When we were not able to leave for Taiwan we proceed (sic) to the
Office of the Anti-illegal Recruitment at the POEA to tell our problem.

(TSN, April 5, 1990, pp. 5-11) 22

The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint Affidavit of
Desistance does not serve to exculpate accused-appellant from criminal liability insofar as the case
for illegal recruitment is concerned since the Court looks with disfavor the dropping of criminal
complaints upon mere affidavit of desistance of the complainant, particularly where the commission
of the offense, as is in this case, is duly supported by documentary evidence. 23

Generally, the Court attaches no persuasive value to affidavits of desistance, especially when it is
executed as an afterthought. It would be a dangerous rule for courts to reject testimonies solemnly
taken before the courts of justice simply because the witnesses who had given them, later on,
changed their mind for one reason or another; for such rule would make solemn trial a mockery and
place the investigation of truth at the mercy of unscrupulous witness. 24

Complainants Bernardo Salazar and Richard Quillope may have a change of heart insofar as the
offense wrought on their person is concerned when they executed their joint affidavit of desistance
but this will not affect the public prosecution of the offense itself. It is relevant to note that "the right of
prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the
sovereign power instinctly charged by the common will of the members of society to look after, guard
and defend the interests of the community, the individual and social rights and the liberties of every
citizen and the guaranty of the exercise of his rights." 25 This cardinal principle which states that to
the State belongs the power to prosecute and punish crimes should not be overlooked since a
criminal offense is an outrage to the sovereign State. As provided by the Civil Code of the
Philippines:

Art. 2034. There may be a compromise upon the civil liability arising from an offense;
but such compromise shall not extinguish the public action for the imposition of the
legal penalty.

The trial court had correctly found accused-appellant ELMA ROMERO guilty beyond reasonable
doubt of the crime of ILLEGAL RECRUITMENT COMMITTED IN LARGE SCALE.

The penalty imposed under Article 39 of the New Labor Code for illegal recruitment committed in
large scale is life imprisonment. However, life imprisonment is not synonymous or interchangeable
with reclusion perpetua. Accordingly, reclusion perpetua should be deleted from the appealed
decision.

WHEREFORE, the decision of the trial court is hereby AFFIRMED with the modification that the term
"reclusion perpetua" be deleted from said decision.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

RULE 111 E: MAGISTRADO VS PEOPLE 527 SCRA 125

THIRD DIVISION

FRANCISCO MAGESTRADO, G.R. No. 148072

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus -
CHICO-NAZARIO, and

NACHURA, JJ.

Promulgated:

PEOPLE OF THE PHILIPPINESand

July 10, 2007
ELENA M. LIBROJO

Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks to reverse the (1) Resolution[1] dated 5
March 2001 of the Court of Appeals in CA-G.R. SP No. 63293 entitled, Francisco
Magestrado v. Hon. Estrella T. Estrada, in her capacity as the Presiding Judge of
Regional Trial Court, Branch 83 of Quezon City, People of the Philippines and Elena
M. Librojo, which dismissed petitioner Francisco Magestrados Petition
for Certiorari for being the wrong remedy; and (2) Resolution[2] dated 3 May 2001
of the same Court denying petitioners motion for reconsideration.

Private respondent Elena M. Librojo filed a criminal complaint[3] for perjury

against petitioner with the Office of the City Prosecutor of Quezon City, which
was docketed as I.S. No. 98-3900.

After the filing of petitioners counter-affidavit and the appended pleadings,

the Office of the City Prosecutor recommended the filing of an information for
perjury against petitioner. Thus, Assistant City Prosecutor Josephine Z.
Fernandez filed an information for perjury against petitioner with the
Metropolitan Trial Court (MeTC) of Quezon City. Pertinent portions of the
information are hereby quoted as follows:

That on or about the 27th day of December, 1997, in Quezon City,

Philippines, the said accused, did then and there willfully, unlawfully
and feloniously and knowingly make an untruthful statement under
oath upon a material matter before a competent officer authorized to
receive and administer oath and which the law so require, to wit: the
said accused subscribe and swore to an Affidavit of Loss before Notary
Public Erlinda B. Espejo of Quezon City, per Doc. No. 168, Page No. 35,
Book No. CLXXIV of her notarial registry, falsely alleging that he lost
Owners Duplicate Certificate of TCT No. N-173163, which document
was used in support of a Petition For Issuance of New Owners Duplicate
Copy of Certificate of Title and filed with the Regional Trial Court of
 Quezon City, docketed as LRC# Q-10052 (98) on January 28, 1998 and
assigned to Branch 99 of the said court, to which said Francisco M.
Mag[e]strado signed and swore on its verification, per Doc. 413 Page 84
Book No. CLXXV Series of 1998 of Notary Public Erlinda B. Espejo of
Quezon City; the said accused knowing fully well that the allegations in
the said affidavit and petition are false, the truth of the matter being
that the property subject of Transfer Certificate of Title No. N-173163
was mortgaged to complainant Elena M. Librojo as collateral for a loan
in the amount of P 758,134.42 and as a consequence of which said title
to the property was surrendered by him to the said complainant by
virtue of said loan, thus, making untruthful and deliberate assertions of
falsehoods, to the damage and prejudice of the said Elena M. Librojo.[4]

The case was raffled to the MeTC of Quezon City, Branch 43, where it was
docketed as Criminal Case No. 90721 entitled, People of the Philippines v.
Francisco Magestrado.
On 30 June 1999, petitioner filed a motion[5] for suspension of proceedings based
on a prejudicial question. Petitioner alleged that Civil Case No. Q-98-34349, a case
for recovery of a sum of money pending before the Regional Trial Court (RTC) of
Quezon City, Branch 84, and Civil Case No. Q-98- 34308, a case for Cancellation of
Mortgage, Delivery of Title and Damages, pending before the RTC of Quezon City,
Branch 77, must be resolved first before Criminal Case No. 90721 may proceed
since the issues in the said civil cases are similar or intimately related to the issues
raised in the criminal action.

On 14 July 1999, MeTC-Branch 43 issued an Order[6] denying petitioners motion

for suspension of proceedings, thus:

Acting on the Motion for Suspension of Proceedings filed by the [herein

petitioner Magestrado], thru counsel, and the Comment and Opposition thereto,
the Court after an evaluation of the same, finds the aforesaid motion without
merit, hence, is hereby DENIED, it appearing that the resolution of the issues
raised in the civil actions is not determinative of the guilt or innocence of the
accused.
Hence, the trial of this case shall proceed as previously scheduled on July
19 and August 2, 1993 at 8:30 in the morning.
 On 17 August 1999, a motion[7] for reconsideration was filed by petitioner
but was denied by the MeTC in an Order[8] dated 19 October 1999.

Aggrieved, petitioner filed a Petition for Certiorari[9] under Rule 65 of the

Revised Rules of Court, with a prayer for Issuance of a Writ of Preliminary
Injunction before the RTC of Quezon City, Branch 83, docketed as Civil Case No.
Q-99-39358, on the ground that MeTC Judge Billy J. Apalit committed grave
abuse of discretion amounting to lack or excess of jurisdiction in denying his
motion to suspend the proceedings in Criminal Case No. 90721.

On 14 March 2000, RTC-Branch 83 dismissed the petition and denied the

prayer for the issuance of a writ of preliminary injunction, reasoning thus:

Scrutinizing the complaints and answers in the civil cases

abovementioned, in relation to the criminal action for PERJURY, this Court
opines and so holds that there is no prejudicial question involved as to warrant the
suspension of the criminal action to await the outcome of the civil cases. The civil
cases are principally for determination whether or not a loan was obtained by
petitioner and whether or not he executed the deed of real estate mortgage
involving the property covered by TCT No. N-173163, whereas the criminal case
is for perjury which imputes upon petitioner the wrongful execution of an
affidavit of loss to support his petition for issuance of a new owners duplicate
copy of TCT No. 173163. Whether or not he committed perjury is the issue in the
criminal case which may be resolved independently of the civil cases. Note that
the affidavit of loss was executed in support of the petition for issuance of a new
owners duplicate copy of TCT No. N-173163 which petition was raffled to
Branch 99 of the RTC. x x x.[10]

Again, petitioner filed a motion for reconsideration[11] but this was denied by
RTC- Branch 83 in an Order[12] dated 21 December 2000.

Dissatisfied, petitioner filed with the Court of Appeals a Petition

for Certiorari[13] under Rule 65 of the Revised Rules of Court, which was docketed
as CA-G.R. SP No. 63293. Petitioner alleged that RTC Judge Estrella T. Estrada
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
denying the Petition for Certiorariin Civil Case No. Q-99-39358, and in effect
sustaining the denial by MeTC-Branch 43 of petitioners motion to suspend the
proceedings in Criminal Case No. 90721, as well as his subsequent motion for
reconsideration thereof.
 On 5 March 2001, the Court of Appeals dismissed [14] the Petition in CA-
G.R. SP No. 63293 on the ground that petitioners remedy should have been an
appeal from the dismissal by RTC-Branch 83 of his Petition for Certiorari in Q-
99-39358. The Court of Appeals ruled that:

Is this instant Petition for Certiorari under Rule 65 the correct and
appropriate remedy?
We rule negatively.
The resolution or dismissal in special civil actions, as in the instant
petition, may be appealed x x x under Section 10, Rule 44 of the 1997 Rules of
Civil Procedure and not by petition for certiorari under Rule 65 of the same rules.
Thus, the said rule provides:
Section 10. Time for filing memoranda on special cases. In certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall
file in lieu of briefs, their respective memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued by the clerk that all the evidence,
oral and documentary, is already attached to the record x x x.
WHEREFORE, in consideration of the foregoing premises, the instant
Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure is
hereby DISMISSED.[15]

The Court of Appeals denied petitioners Motion for Reconsideration[16] in a

Resolution[17] dated 3 May 2001.

Hence, petitioner comes before us via a Petition for Review on Certiorari under
Rule 45 of the Revised Rules of Court raising the following issues:

1. Whether or not the Orders of Judge Estrella T. Estrada dated March

14, 2000 denying petitioners Petition for Certiorari under Rule 65 of
the Rules of Court, and her subsequent Order dated December 21,
2000, denying the Motion for Reconsideration thereafter filed can
only be reviewed by the Court of Appeals thru appeal under Section
10, Rule 44 of the 1997 Rules of Civil Procedure.
 2. Whether or not Judge Estrella T. Estrada of the Regional Trial Court,
Branch 83, Quezon City, had committed grave abuse of discretion
amounting to lack or in excess of her jurisdiction in denying the
Petition for Certiorari and petitioners subsequent motion for
reconsideration on the ground of a prejudicial question pursuant to
the Rules on Criminal Procedure and the prevailing jurisprudence.

After consideration of the procedural and substantive issues raised by

petitioner, we find the instant petition to be without merit.

The procedural issue herein basically hinges on the proper remedy which
petitioner should have availed himself of before the Court of Appeals: an ordinary
appeal or a petition for certiorari. Petitioner claims that he correctly questioned
RTC-Branch 83s Order of dismissal of his Petition for Certiorari in Civil Case No.
Q-99-39358 through a Petition for Certiorari before the Court of Appeals. Private
respondent and public respondent People of the Philippines insist that an ordinary
appeal was the proper remedy.

We agree with respondents. We hold that the appellate court did not err in
dismissing petitioners Petition for Certiorari, pursuant to Rule 41, Section 2 of the
Revised Rules of Court (and not under Rule 44, Section 10, invoked by the Court
of Appeals in its Resolution dated 5 March 2001).

The correct procedural recourse for petitioner was appeal, not only
because RTC-Branch 83 did not commit any grave abuse of discretion in
dismissing petitioners Petition for Certiorari in Civil Case No. Q-99-39358 but also
because RTC-Branch 83s Order of dismissal was a final order from which
petitioners should have appealed in accordance with Section 2, Rule 41 of the
Revised Rules of Court.
 An order or a judgment is deemed final when it finally disposes of a
pending action, so that nothing more can be done with it in the trial court. In
other words, the order or judgment ends the litigation in the lower court. Au
contraire, an interlocutory order does not dispose of the case completely, but
leaves something to be done as regards the merits of the latter.[18] RTC-Branch
83s Order dated 14 March 2001 dismissing petitioners Petition for Certiorari in
Civil Case No. Q-99-39358 finally disposes of the said case and RTC-Branch 83 can
do nothing more with the case.

Under Rule 41 of the Rules of Court, an appeal may be taken from a

judgment or final order that completely disposes of the case, or of a particular
matter therein when declared by the Revised Rules of Court to be appealable. The
manner of appealing an RTC judgment or final order is also provided in Rule 41 as
follows:

Section 2. Modes of appeal.

(a) Ordinary appeal. The appeal to the Court of Appeals in cases

decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving
a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.

Certiorari generally lies only when there is no appeal nor any other plain,
speedy or adequate remedy available to petitioners. Here, appeal was available. It
was adequate to deal with any question whether of fact or of law, whether of
error of jurisdiction or grave abuse of discretion or error of judgment which the
trial court might have committed.But petitioners instead filed a special civil action
for certiorari.

We have time and again reminded members of the bench and bar that a
special civil action for certiorari under Rule 65 of the Revised Rules of Court lies
only when there is no appeal nor plain, speedy and adequate remedy in the
ordinary course of law.[19] Certiorari cannot be allowed when a party to a case fails
to appeal a judgment despite the availability of that remedy,[20] certiorari not
being a substitute for lost appeal.[21]
As certiorari is not a substitute for lost appeal, we have repeatedly
emphasized that the perfection of appeals in the manner and within the period
permitted by law is not only mandatory but jurisdictional, and that the failure to
perfect an appeal renders the decision of the trial court final and executory. This
rule is founded upon the principle that the right to appeal is not part of due
process of law but is a mere statutory privilege to be exercised only in the manner
and in accordance with the provisions of the law. Neither can petitioner invoke
the doctrine that rules of technicality must yield to the broader interest of
substantial justice. While every litigant must be given the amplest opportunity for
the proper and just determination of his cause, free from constraints of
technicalities, the failure to perfect an appeal within the reglementary period is
not a mere technicality. It raises a jurisdictional problem as it deprives the
appellate court of jurisdiction over the appeal.[22]

The remedies of appeal and certiorari are mutually exclusive and not
alternative or successive.[23] A party cannot substitute the special civil action
of certiorari under Rule 65 of the Rules of Court for the remedy of appeal. The
existence and availability of the right of appeal are antithetical to the availability
of the special civil action for certiorari.[24] As this Court held in Fajardo v.
Bautista[25]:
 Generally, an order of dismissal, whether right or wrong, is a final order,
and hence a proper subject of appeal, not certiorari. The remedies of
appeal and certiorari are mutually exclusive and not alternative or
successive. Accordingly, although the special civil action of certiorari is
not proper when an ordinary appeal is available, it may be granted
where it is shown that the appeal would be inadequate, slow,
insufficient, and will not promptly relieve a party from the injurious
effects of the order complained of, or where appeal is inadequate and
ineffectual. Nevertheless, certiorari cannot be a substitute for the lost
or lapsed remedy of appeal, where such loss is occasioned by the
petitioners own neglect or error in the choice of remedies.

On 21 December 2000, petitioner received a copy of the Order of the RTC-

Branch 83 denying his motion for reconsideration of the dismissal of his Petition
for Certiorariin Civil Case No. Q-99-39358; hence, he had until 18 January
2001 within which to file an appeal with the Court of Appeals. The Petition
for Certiorari filed by petitioner on 19 February 2001 with the Court of Appeals
cannot be a substitute for the lost remedy of appeal. As petitioner failed to file a
timely appeal, RTC-Branch 83s dismissal of his Petition for Certiorari had long
become final and executory.

For this procedural lapse, the Court of Appeals correctly denied outright the
Petition for Certiorari filed by petitioner before it.

Moreover, there are even more cogent reasons for denying the instant
Petition on the merits.

In the Petition at bar, petitioner raises several substantive issues. Petitioner

harps on the need for the suspension of the proceedings in Criminal Case No.
90721 for perjury pending before MeTC-Branch 43 based on a prejudicial question
still to be resolved in Civil Case No. Q-98-34308 (for cancellation of mortgage)
and Civil Case No. Q-98-34349 (for collection of a sum of money) which are
pending before other trial courts.

For clarity, we shall first discuss the allegations of petitioner in his

complaint in Civil Case No. Q-98-34308 (for cancellation of mortgage) and that of
private respondent in her complaint in Civil Case No. Q-98-34349 (for collection of
a sum of money).

Civil Case No. Q-98-34308 is a complaint for Cancellation of Mortgage,

Delivery of Title and Damages filed on 8 May 1988 by petitioner against private
respondent with RTC-Branch 77. Petitioner alleges that he purchased a parcel of
land covered by Transfer Certificate of Title No. N-173163 thru private
respondent, a real estate broker. In the process of negotiation, petitioner was
pressured to sign a Deed of Sale prepared by private respondent. Upon signing the
Deed of Sale, he noticed that the Deed was already signed by a certain Cristina
Gonzales as attorney-in-fact of vendor Spouses Guillermo and Amparo
Galvez. Petitioner demanded from private respondent a special power of attorney
and authority to sell, but the latter failed to present one. Petitioner averred that
private respondent refused to deliver the certificate of title of the land despite
execution and signing of the Deed of Sale and payment of the
consideration. Petitioner was thus compelled to engage the services of one
Modesto Gazmin, Jr. who agreed, for P100,000.00 to facilitate the filing of cases
against private respondent; to deliver to petitioner the certificate of title of the land;
and/or to cancel the certificate of title in possession of private
respondent. However, Mr. Gazmin, Jr., did nothing upon receipt of the amount
of P100,000.00 from petitioner. In fact, petitioner was even charged with perjury
before the Office of the City Prosecutor, all because of Mr. Gazmin, Jr.s
wrongdoing. Petitioner further alleged that he discovered the existence of a
spurious Real Estate Mortgage which he allegedly signed in favor of private
respondent. Petitioner categorically denied signing the mortgage document and it
was private respondent who falsified the same in order to justify her unlawful
withholding of TCT No. N-173163 from petitioner. Thus, petitioner prayed for:
 1. The cancellation of Real Estate Mortgage dated August 2,
1997 as null and void;

2. As well as to order [herein private respondent] to DELIVER the

Owners Duplicate Copy of Transfer Certificate of Title No. N-173163 to
[herein petitioner];

3. Condemning [private respondent] to pay [petitioner] the sums

of

a) P100,000.00 as MORAL DAMAGES;

b) P50,000.00 as EXEMPLARY DAMAGES;

c) P50,000.00 as Attorneys fees and

d) Cost of suit.

4. A general relief is likewise prayed for (sic) just and equitable

under the premises.

Civil Case No. Q-98-34349,[26] on the other hand, is a complaint for a sum of
money with a motion for issuance of a writ of attachment filed by private
respondent against petitioner on 14 May 1988 before RTC-Branch 84. Private
respondent alleges that petitioner obtained a loan from her in the amount
of P758,134.42 with a promise to pay on or before 30 August 1997. As security for
payment of the loan, petitioner executed a Deed of Real Estate Mortgage covering
a parcel of land registered under TCT No. N-173163. Petitioner pleaded for
additional time to pay the said obligation, to which respondent agreed. But private
respondent discovered sometime in February 1998 that petitioner executed an
affidavit of loss alleging that he lost the owners duplicate copy of TCT No. N-
173163, and succeeded in annotating said affidavit on the original copy of TCT
No. N-173163 on file with the Registry of Deeds of Quezon City. Private
respondent further alleges that she also discovered that petitioner filed a petition
for issuance of a new owners duplicate copy of TCT No. N-173163 with the RTC
of Quezon City, Branch 98, docketed as LRC Case No. Q-10052. Private
respondent demanded that petitioner pay his obligation, but the latter refused to do
so. Resultantly, private respondent prayed for the following:

A. That upon filing of this Complaint as well as the Affidavit of

attachment and a preliminary hearing thereon, as well as bond
filed, a writ of preliminary attachment is (sic) by the Honorable
Court ordering the Sheriff to levy [herein petitioner] property
sufficient to answer [herein private respondents] claim in this
action;

B. That after due notice and hearing, judgment be rendered in

[private respondents] favor as against [petitioner], ordering the
latter to pay the former the sum of P758,134.42 plus interest
thereon at 5% per month from September 1997 up to the date of
actual payment; actual damages in the sums of P70,000.00 each
under paragraphs 11 and 12 of the complaint; P200,000.00 as
moral damages; P100,000.00 as exemplary damages; twenty
(20%) of the principal claim as attorneys fees plus P2,500.00 per
appearance honorarium; and P60,000.00 as litigation expense
before this Honorable Court.

[Petitioner] prays for such further relief in law, justice and equity.

As to whether it is proper to suspend Criminal Case No. 90721 for perjury

pending final outcome of Civil Case No. Q-98-34349 and Civil Case No. Q-98-
34308, we take into consideration Sections 6 and 7, Rule 111 of the Revised Rules
of Court, which read:
 Sec. 6. Suspension by reason of prejudicial question. A petition
for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When
the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the
prosecution rests.

Sec. 7. Elements of prejudicial question. The elements of a

prejudicial question are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in the
subsequent criminal action; and (b) the resolution of such issue
determines whether or not the criminal action may proceed.

The rationale behind the principle of suspending a criminal case in view of a

prejudicial question is to avoid two conflicting decisions.[27]

A prejudial question is defined as that which arises in a case the resolution

of which is a logical antecedent of the issue involved therein, and the cognizance
of which pertains to another tribunal. The prejudicial question must be
determinative of the case before the court but the jurisdiction to try and resolve
the question must be lodged in another court or tribunal. It is a question based on
a fact distinct and separate from the crime but so intimately connected with it
that it determines the guilt or innocence of the accused.[28]

For a prejudicial question in a civil case to suspend criminal action, it must

appear not only that said case involves facts intimately related to those upon
which the criminal prosecution would be based but also that in the resolution of
the issue or issues raised in the civil case, the guilt or innocence of the accused
would necessarily be determined.

Thus, for a civil action to be considered prejudicial to a criminal case as to

cause the suspension of the criminal proceedings until the final resolution of the
civil case, the following requisites must be present: (1) the civil case involves facts
intimately related to those upon which the criminal prosecution would be based;
(2) in the resolution of the issue or issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined; and (3) jurisdiction to
try said question must be lodged in another tribunal.[29]

If the resolution of the issue in the civil action will not determine the
criminal responsibility of the accused in the criminal action based on the same
facts, or there is no necessity that the civil case be determined first before taking
up the criminal case, therefore, the civil case does not involve a prejudicial
question.[30] Neither is there a prejudicial question if the civil and the criminal
action can, according to law, proceed independently of each other.[31]

However, the court in which an action is pending may, in the exercise of

sound discretion, and upon proper application for a stay of that action, hold the
action in abeyance to abide by the outcome of another case pending in another
court, especially where the parties and the issues are the same, for there is power
inherent in every court to control the disposition of cases on its dockets with
economy of time and effort for itself, for counsel, and for litigants. Where the
rights of parties to the second action cannot be properly determined until the
questions raised in the first action are settled, the second action should be
stayed.[32]

The power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the cases on its dockets, considering its time and
effort, those of counsel and the litigants. But if proceedings must be stayed, it
must be done in order to avoid multiplicity of suits and prevent vexatious
litigations, conflicting judgments, confusion between litigants and courts. It bears
stressing that whether or not the trial court would suspend the proceedings in the
criminal case before it is submitted to its sound discretion.[33]

Indeed, a judicial order issued pursuant to the courts discretionary authority

is not subject to reversal on review unless it constitutes an abuse of discretion. As
the United States Supreme Court aptly declared in Landis v. North American Co.,
the burden of making out the justice and wisdom from the departure from the
beaten truck lay heavily on the petitioner, less an unwilling litigant is compelled to
wait upon the outcome of a controversy to which he is a stranger. It is, thus, stated
that only in rare circumstances will a litigant in one case is compelled to stand
aside, while a litigant in another, settling the rule of law that will define the rights
of both is, after all, the parties before the court are entitled to a just, speedy and
plain determination of their case undetermined by the pendency of the proceedings
in another case. After all, procedure was created not to hinder and delay but to
facilitate and promote the administration of justice.[34]

As stated, the determination of whether the proceedings may be suspended

on the basis of a prejudicial question rests on whether the facts and issues raised in
the pleadings in the civil cases are so related with the issues raised in the criminal
case such that the resolution of the issues in the civil cases would also determine
the judgment in the criminal case.

A perusal of the allegations in the complaints show that Civil Case No. Q-
98-34308 pending before RTC-Branch 77, and Civil Case No. Q-98-34349,
pending before RTC-Branch 84, are principally for the determination of whether a
loan was obtained by petitioner from private respondent and whether petitioner
executed a real estate mortgage involving the property covered by TCT No. N-
173163. On the other hand, Criminal Case No. 90721 before MeTC-Branch 43,
involves the determination of whether petitioner committed perjury in executing an
affidavit of loss to support his request for issuance of a new owners duplicate copy
of TCT No. N-173163.

It is evident that the civil cases and the criminal case can proceed
independently of each other. Regardless of the outcome of the two civil cases, it
will not establish the innocence or guilt of the petitioner in the criminal case for
perjury. The purchase by petitioner of the land or his execution of a real estate
mortgage will have no bearing whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of TCT No. N-173163.

MeTC-Branch 43, therefore, did not err in ruling that the pendency of Civil
Case No. Q-98-34308 for cancellation of mortgage before the RTC-Branch 77; and
Civil Case No. Q-98-34349 for collection of a sum of money before RTC-Branch
84, do not pose a prejudicial question in the determination of whether petitioner
is guilty of perjury in Criminal Case No. 90721. RTC-Branch 83, likewise, did not err
in ruling that MeTC-Branch 43 did not commit grave abuse of discretion in
denying petitioners motion for suspension of proceedings in Criminal Case No.
90721.

WHEREFORE, premises considered, the assailed Resolutions dated 5 March

2001 and 3 May 2001of the Court of Appeals in CA-G.R. SP No. 63293 are
hereby AFFIRMED and the instant petition is DISMISSED for lack of
merit. Accordingly, the Metropolitan Trial Court of Quezon City, Branch 43, is
hereby directed to proceed with the hearing and trial on the merits of Criminal
Case No. 90721, and to expedite proceedings therein, without prejudice to the
right of the accused to due process. Costs against petitioner.

SO ORDERED

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
 CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice 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.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

RULE 111 E: pimentel vs Pimentel

SECOND DIVISION

JOSELITO R. PIMENTEL, G.R. No. 172060

Petitioner,
Present:

CARPIO, J., Chairperson,

- versus - PERALTA,
BERSAMIN,*
ABAD, and
VILLARAMA, JR.,** JJ.
MARIA CHRYSANTINE
L. PIMENTEL and PEOPLE Promulgated:
OF THE PHILIPPINES,
Respondents. September 13, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review[1] assailing the Decision[2] of the Court of
Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867.

The Antecedent Facts

The facts are stated in the Court of Appeals decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private

respondent) filed an action for frustrated parricide against Joselito R. Pimentel
(petitioner), docketed as Criminal Case No. Q-04-130415, before the Regional
Trial Court of Quezon City, which was raffled to Branch 223 (RTC Quezon City).

On 7 February 2005, petitioner received summons to appear before the Regional

Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and trial of
Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel)
for Declaration of Nullity of Marriage under Section 36 of the Family Code on the
ground of psychological incapacity.

On 11 February 2005, petitioner filed an urgent motion to suspend the

proceedings before the RTC Quezon City on the ground of the existence of a
prejudicial question.Petitioner asserted that since the relationship between the
offender and the victim is a key element in parricide, the outcome of Civil Case
No. 04-7392 would have a bearing in the criminal case filed against him before
the RTC Quezon City.

The Decision of the Trial Court

The RTC Quezon City issued an Order dated 13 May 2005[3] holding that the
pendency of the case before the RTC Antipolo is not a prejudicial question that
warrants the suspension of the criminal case before it. The RTC Quezon City held
that the issues in Criminal Case No. Q-04-130415 are the injuries sustained by
respondent and whether the case could be tried even if the validity of petitioners
marriage with respondent is in question. The RTC Quezon City ruled:
 WHEREFORE, on the basis of the foregoing, the Motion to Suspend
Proceedings On the [Ground] of the Existence of a Prejudicial Question
is, for lack of merit, DENIED.

SO ORDERED.[4]

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,[5] the
RTC Quezon City denied the motion.

Petitioner filed a petition for certiorari with application for a writ of preliminary
injunction and/or temporary restraining order before the Court of Appeals,
assailing the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.

The Decision of the Court of Appeals

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The
Court of Appeals ruled that in the criminal case for frustrated parricide, the issue
is whether the offender commenced the commission of the crime of parricide
directly by overt acts and did not perform all the acts of execution by reason of
some cause or accident other than his own spontaneous desistance. On the other
hand, the issue in the civil action for annulment of marriage is whether petitioner
is psychologically incapacitated to comply with the essential marital
obligations. The Court of Appeals ruled that even if the marriage between
petitioner and respondent would be declared void, it would be immaterial to the
criminal case because prior to the declaration of nullity, the alleged acts
constituting the crime of frustrated parricide had already been committed. The
Court of Appeals ruled that all that is required for the charge of frustrated
parricide is that at the time of the commission of the crime, the marriage is still
subsisting.

Petitioner filed a petition for review before this Court assailing the Court of
Appeals decision.

The Issue

The only issue in this case is whether the resolution of the action for annulment
of marriage is a prejudicial question that warrants the suspension of the criminal
case for frustrated parricide against petitioner.

The Ruling of this Court

The petition has no merit.

Civil Case Must be Instituted

Before the Criminal Case

Section 7, Rule 111 of the 2000 Rules on Criminal Procedure[6] provides:

Section 7. Elements of Prejudicial Question. - The elements of a

prejudicial question are: (a) the previously instituted civil action involves
an issue similar or intimately related to the issue raised in the subsequent
criminal action and (b) the resolution of such issue determines whether
or not the criminal action may proceed.
The rule is clear that the civil action must be instituted first before the filing of the
criminal action. In this case, the Information[7] for Frustrated Parricide was dated
30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the
stamped date of receipt on the Information. The RTC Quezon City set Criminal
Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was
served summons in Civil Case No. 04-7392 on 7 February 2005.[8] Respondents
petition[9] in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on
5 November 2004. Clearly, the civil case for annulment was filed after the filing of
the criminal case for frustrated parricide. As such, the requirement of Section 7,
Rule 111 of the 2000 Rules on Criminal Procedure was not met since the civil
action was filed subsequent to the filing of the criminal action.

Annulment of Marriage is not a Prejudicial Question

in Criminal Case for Parricide

Further, the resolution of the civil action is not a prejudicial question that would
warrant the suspension of the criminal action.

There is a prejudicial question when a civil action and a criminal action are both
pending, and there exists in the civil action an issue which must be preemptively
resolved before the criminal action may proceed because howsoever the issue
raised in the civil action is resolved would be determinative of the guilt or
innocence of the accused in the criminal case.[10] A prejudicial question is defined
as:

x x x one that arises in a case the resolution of which is a logical

antecedent of the issue involved therein, and the cognizance of which
pertains to another tribunal. It is a question based on a fact distinct and
 separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for it to suspend
the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would
be based but also that in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused would necessarily be
determined.[11]

The relationship between the offender and the victim is a key element in the
crime of parricide,[12] which punishes any person who shall kill his father, mother,
or child, whether legitimate or illegitimate, or any of his ascendants or
descendants, or his spouse.[13] The relationship between the offender and the
victim distinguishes the crime of parricide from murder[14] or
homicide.[15] However, the issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for parricide. Further, the
relationship between the offender and the victim is not determinative of the guilt
or innocence of the accused.

The issue in the civil case for annulment of marriage under Article 36 of the
Family Code is whether petitioner is psychologically incapacitated to comply with
the essential marital obligations. The issue in parricide is whether the accused
killed the victim. In this case, since petitioner was charged with frustrated
parricide, the issue is whether he performed all the acts of execution which would
have killed respondent as a consequence but which, nevertheless, did not
produce it by reason of causes independent of petitioners will.[16] At the time of
the commission of the alleged crime, petitioner and respondent were
married. The subsequent dissolution of their marriage, in case the petition in Civil
Case No. 04-7392 is granted, will have no effect on the alleged crime that was
committed at the time of the subsistence of the marriage. In short, even if the
marriage between petitioner and respondent is annulled, petitioner could still be
held criminally liable since at the time of the commission of the alleged crime, he
was still married to respondent.
We cannot accept petitioners reliance on Tenebro v. Court of Appeals[17] that the
judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as
the vinculum between the spouses is concerned x x x. First, the issue in Tenebro is
the effect of the judicial declaration of nullity of a second or subsequent marriage
on the ground of psychological incapacity on a criminal liability for bigamy. There
was no issue of prejudicial question in that case. Second, the Court ruled
in Tenebro that [t]here is x x x a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal consequences.[18] In fact,
the Court declared in that case that a declaration of the nullity of the second
marriage on the ground of psychological incapacity is of absolutely no moment
insofar as the States penal laws are concerned.[19]

In view of the foregoing, the Court upholds the decision of the Court of
Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the
resolution of the issue in Civil Case No. 04-7392 is not determinative of the guilt
or innocence of petitioner in the criminal case.

WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of

the Court of Appeals in CA-G.R. SP No. 91867.
SO ORDERED.

ANTONIO T. CARPIO
 Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
 ANTONIO T. CARPIO
Associate Justice
Chairperson

\
RULE 111: JM DOMINGUEZ VS LACLICAN 764 SCRA 338

THIRD DIVISION

G.R. No. 208587, July 29, 2015

JM DOMINGUEZ AGRONOMIC COMPANY, INC., HELEN D. DAGDAGAN, PATRICK PACIS, KENNETH

PACIS, AND SHIRLEY DOMINGUEZ, Petitioners, v. CECILIA LICLICAN, NORMA D. ISIP, AND PURITA
DOMINGUEZ, Respondents.

DECISION

VELASCO JR., J.:

Nature of the Case

Petitioners, through the instant Petition for Review on Certiorari under Rule 45 of the Rules of Court, seek
the reversal of the Court of Appeals (CA) Decision1dated August 30, 2012 and its Resolution2dated July 15,
2013 in CA-G.R. SP No.108617. Said rulings nullified the Orders authorizing the issuance of the assailed
warrants of arrest against respondents for allegedly having been issued in grave abuse of discretion.

The Facts

During the annual stockholders meeting of petitioner JM Dominguez Agronomic Company, Inc. (JMD) held
on December 29, 2007 at the Baguio City Country Club, the election for its new set of directors was
conducted. This event was presided by then company president, and herein respondent, Cecilia Liclican
(Liclican), and attended by her co-respondents Norma Isip (Isip) and Purita Rodriguez, and by petitioners
Helen Dagdagan (Dagdagan), Patrick Pacis, Kenneth Pacis, and Shirley Dominguez (Dominguez) as well.
Conflict ensued when petitioners Patrick and Kenneth Pacis were allegedly not allowed to vote on the ground
that they are not registered stockholders of JMD. As pointed out, it was their mother and grandmother, both
deceased, who are the stockholders in JMD, and that there is still no settlement of their respective estates to
effectively transfer their shares in the company to Patrick and Kenneth Pacis.3 ChanRoblesVi rt ualawlib ra ry

Tensions rose and respondents, allegedly, walked out of the meeting. But since the remaining stockholders
with outstanding shares constituted a quorum, the election of officers still proceeded, which yielded the
following result:4 c ralawlawl ibra ry

Officers:
��� 1.����� Helen D. Dagdagan as President
��� 2.����� Patrick D. Pacis as Vice-President
��� 3.����� Kenneth D. Pacis as Secretary
��� 4.����� Shirley C. Dominguez as Treasurer
chanroblesv irt uallawl ibra ry

After staging the walk-out, respondents, on even date, executed a Board Resolution certifying that in the
stockholders meeting, the following were elected directors and officers of JMD:5 cralawlawlib rary

Board of Directors:
��� 1.����� Cecilia D. Liclican � Chairman and Presiding Officer
��� 2.����� Norma D. Isip
��� 3.����� Purita C. Dominguez
��� 4.����� Tessie C. Dominguez, and
��� 5.����� Shirley C. Dominguez

Officers:
��� 1.����� Cecilia D. Liclican as President and Presiding Officer
��� 2.����� Norma D. Isip as Vice-President
��� 3.����� Gerald B. Cabrera as Corporate Secretary/Treasurer and
��� 4.����� Oscar Aquino � Financial Consultant Auditor
chanroblesv irt uallawl ibra ry

In reaction to the foregoing developments, petitioners Dagdagan, Patrick and Kenneth Pacis, and Dominguez
filed a Complaint against respondents before the Regional Trial Court of Baguio City (RTC) for nullification of
meetings, election and acts of directors and officers, injunction and other reliefs, raffled to Branch 59 of the
court. Docketed as Civil Case No. 6623-R, the case, after a failed mediation, was referred for appropriate
Judicial Dispute Resolution (JDR) to Branch 7 of the RTC. Meanwhile, petitioner stockholders immediately
took hold of corporate properties, represented themselves to JMD�s tenants as the true and lawful directors
of the company, and collected and deposited rents due the company to its bank account.6 ChanRoblesVi rt ualawlib ra ry

Subsequently, JMD, represented by petitioners Dagdagan and Patrick Pacis, executed an Affidavit-
Complaint7 dated December 15, 2008 charging respondents Liclican and Isip with qualified theft. Petitioners
alleged in the complaint, docketed as I.S. No. 3011 with the Office of the City Prosecutor in Baguio City, that
on January 2, 2008, Liclican and Isip, without any authority whatsoever, conspired to withdraw the amount
of P852,024.19 from the corporation�s savings account with the Equitable-PCI Bank; and that the following
day, they issued Check No. C00024899018in the amount of P200,000, payable to cash, and to be drawn
against JMD�s account with Robinson�s Savings Bank.9 ChanRobles Vi rtua lawlib rary

In a separate complaint,10docketed as I.S. No. 3118, the corporation claimed that respondents Liclican and
Isip likewise issued Equitable-PCI Bank Check No. 32095311payable to one Atty. Francisco Lava, Jr. for
P200,000 to be debited from the corporation�s account.

After due proceedings, the Office of the City Prosecutor of Baguio City, by Joint Resolution of February 2,
2009, recommended the filing of informations as follows:12 cra lawlawlib rary

WHEREFORE, premises considered, the undersigned recommends for approval the attached Informations for
Qualified Theft against LICLICAN and ISIP in I.S. No. 3011 and another against LICLICAN in I.S. No. 3118.
chanroblesv irt uallawl ibra ry

When filed, the informations were eventually raffled to Branch 7 of the RTC, the same court overseeing the
JDR,13 presided over by Judge Mona Lisa V. Tiongson-Tabora (JudgeTiongson-Tabora). The criminal cases
for qualified theft were then docketed as Criminal Case Nos. 29176-R (based on I.S. No. 3118) and 29175-R
(based on I.S. No. 3111).

On March 10, 2009, Judge Tiongson-Tabora issued an Order14 in Criminal Case No. 29176-R, finding
probable cause for the issuance of a warrant of arrest against Liclican, thus:
chanRoble svirtual Lawlib ra ry

WHEREFORE, the Information filed herein is hereby given due course. Let the corresponding warrant of
arrest be issued against the accused. As recommended, the bail is hereby fixed as Php 80,000.00.

SO ORDERED.
chanroblesv irt uallawl ibra ry

A similar Order,15 also dated March 10, 2009,was issued in Criminal Case No. 29175-R likewise finding
probable cause against respondents Liclican and Isip, viz:
chanRoble svirtual Lawlib ra ry

WHEREFORE, the Information filed herein is hereby given due course. Let the corresponding warrant of
arrest be issued against the accused. As recommended, the bail is hereby fixed at Php 80,000.00 each.

Considering that the address provided for accused Norma Isip is Washington, U.S.A., the private
complainants are hereby given fifteen (15) days from receipt hereof to provide the Court with a local
address for the said accused if she may be found in the Philippines.

SO ORDERED.
chanroblesv irt uallawl ibra ry

Consequently, the corresponding warrants were issued for the arrests of Isip and Liclican.16 ChanRobles Vi rtua lawlib rary

In due time, respondents lodged a petition for certiorari with the CA, docketed as CA-G.R. SP No.108617, to
annul and set aside the two (2) March 10, 2009 Orders by the RTC Branch 7, anchored, among others, on
the alleged existence of a prejudicial question. According to respondents, petitioner stockholders, by filing
the complaint-affidavit, are already assuming that they are the legitimate directors of JMD, which is the very
issue in the intra-corporate dispute pending in the RTC, Branch 59.

Ruling of the Court of Appeals

In its assailed Decision, the CA granted the petition for certiorari, disposing as follows:
chanRoble svirtual Lawlib ra ry

WHEREFORE, the challenged Orders both dated March 10, 2009 are hereby ANNULLEDand SET ASIDE for
having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
SO ORDERED.
chanroblesv irt uallawl ibra ry

The appellate court held that Judge Tiongson-Tabora should have refrained from determining probable cause
since she is well aware of the pendency of the issue on the validity of JMD�s elections in Civil Case No.
6623-R. As the judge overseeing the JDR of the said intra-corporate dispute, she knew that there was still
doubt as to who the rightfully elected directors of JMD are and, corollarily, who would have the authority to
initiate the criminal proceedings for qualified theft.17 ChanRoble sVirt ualawli bra ry

The CA further noted that even as corporate officers, as they claim to be, petitioners Dagdagan and Patrick
Pacis cannot file the Complaint- Affidavit in the exercise of corporate powers without authority from the
board of directors under Sec. 23,18 in relation to Sec. 2519of the Corporation Code.20 Any doubt cast on the
validity of the board elections would then necessarily extend to the authority of the officers to act.

As further held by the CA:

chanRoble svirtual Lawlib ra ry

x x x Since there is doubt in the instant case as to the sufficiency of the authority of a corporate officer,
Judge Tiongson-Tabora should have exercised prudence by holding the criminal cases in abeyance pending
resolution of the intra-corporate dispute which private respondents themselves instituted.21
chanroblesv irt uallawl ibra ry

Aggrieved, individual petitioners moved for reconsideration, on the main contention that their election as
officers and directors of JMD has already been sustained by the trial court via its Judgment in Civil Case No.
6623-R dated� May 6, 2011. They likewise claimed that the issue on whether or not the RTC, Branch 7
committed grave abuse of discretion is already rendered moot and academic by the judge�s inhibition in
Criminal Case Nos. 29175-R and 29176-R, and the termination of the JDR proceedings in Civil Case No.
6623-R. Petitioners� motion, however, proved futile as the appellate court denied the same in its January
13, 2013 Resolution.22 ChanRoble sVirt ualawli bra ry

Hence, the instant recourse.

The Issues

Plainly, the resolution of the extant case depends on whether or not there exists a prejudicial question that
could affect the criminal proceedings for qualified theft against respondents. In the concrete, the issues are
(i) whether or not Civil Case No. 6623-R constituted a prejudicial question warranting the suspension of the
proceedings in Criminal Case Nos. 29175-R and 29176-R; and (ii) whether or not grave abuse of discretion
attended the issuance of the two assailed March 10, 2009 Orders in Criminal Case Nos. 29175-R and 29176-
R.

The Court�s Ruling

The petition lacks merit.

The challenged Orders of the trial court were issued in grave abuse of discretion

We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates or
contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion is meant, such
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion
must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. The word
�capricious,� usually used in tandem with the term �arbitrary,� conveys the notion of willful and
unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and
arbitrariness in the exercise of discretion is imperative.23 Cha nRobles Virtualawl ibra ry

In the case at bar, the CA correctly ruled that Judge Tiongson-Tabora acted with grave abuse of discretion
when she ordered the arrests of respondents Isip and Liclican despite the existence of a prejudicial question.

As jurisprudence elucidates, a prejudicial question generally exists in a situation where a civil action and a
criminal action are both pending, and there exists in the former an issue that must be pre-emptively
resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.24The
rationale behind the principle is to avoid two conflicting decisions,25and its existence rests on the
concurrence of two essential elements: (i) the civil action involves an issue similar or intimately related to
the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the
criminal action may proceed.26 ChanRoblesVirtualawlibrary

Here, the CA aptly observed that Civil Case No. 6623-R, the intra-corporate dispute, posed a prejudicial
question to Criminal Case Nos. 29175-R and 29176-R. To be sure, Civil Case No. 6623-R involves the same
parties herein, and is for nullification of JMD�s meetings, election and acts of its directors and officers,
among others. Court intervention was sought to ascertain who between the two contesting group of officers
should rightfully be seated at the company�s helm. Without Civil Case No. 6623-R�s resolution,
petitioners� authority to commence and prosecute Criminal Case Nos. 29175-R and 29176-R against
respondents for qualified theft in JMD�s behalf remained questionable, warranting the suspension of the
criminal proceedings.

Judge Tiongson-Taboracannot deny knowledge of the pendency of Civil Case No. 6623-R as the judge
presiding over its JDR. As correctly held by the CA:
chanRoble svirtual Lawlib ra ry

Judge Tiongson-Tabora is well-aware of the existence of said prejudicial questionthat should have
barred the filing of the criminal complaint against petitioners Liclican and Isip, for the simple reason that a
juridical person can only act through its officers, and the issue in the main case submitted for JDR before
Judge Tiongson-Tabora is one for nullification of meetings, election and act of directors and officers,
injunction and other reliefs. Thus, she knows for a fact that there is a question as to who are the
legitimate directors of JMD such that there is doubt as to whether private respondents are in a
position to act for JMD. (emphasis added)
chanroblesv irt uallawl ibra ry

Verily, the RTC ought to have suspended the proceedings, instead of issuing the challenged Orders issued by
the RTC.

The subsequent resolution of the prejudicial question did not cure the defect

It may be, as the petitioners pointed out in their motion for reconsideration filed before the CA, that Civil
Case No. 6623-R was eventually resolved in their favor through a Judgment27 dated May 6, 2011 rendered
by the RTC, Branch 59, the dispositive portion of which reads:
chanRoble svirtual Lawlib ra ry

WHEREFORE, from all the foregoing disquisitions, the Court hereby declares that the plaintiffs [petitioners
herein] are the duly elected board of directors and officers of the JM Dominguez Agronomic
Company, Inc. for the year 2008 and hold-over capacity unless here had already been an election
of new officers.

Consequently, all Corporate Acts which the defendants [herein respondents and one Gerald Cabrera
and one Oscar Aquino] have done and performed and
all documents they have executed and issued have no force and effect.

Considering that the amount of Php850,000.00 which defendants have withdrawn under the account of JM
Dominguez Agronomic Company, Inc. from the Equitable � PCI Bank (now Banco de Oro) is the same
subject in CC no. 29175-R entitled Pp. vs. Cecilia Liclican and Norma D. Isip for Qualified Theft, the Court
will no longer dwell on the same.

xxxx

SO ORDERED. (emphasis and words in bracket added)

chanroblesv irt uallawl ibra ry

This Judgment has, on June 6, 2011,become final and executory, as per the Notice of Entry of Judgment
issued by the same trial court.28 Evidently, whatever cloud of doubt loomed over petitioners� actuations has
already been dispelled. Petitioners then postulate that the question on whether or not the challenged Orders
were issued in grave abuse of discretion has already been rendered moot and academic by the June 6, 2011
ruling and by Judge Tiongson-Tabora�s subsequent inhibition in the criminal proceedings. Consequently,
they argue that their motion for reconsideration should have been granted by the appellate court.

We are not convinced.

The resolution of the prejudicial question did not, in context, cure the grave abuse of discretion already
committed. The fact remains that when the RTC, Branch 7 issued its challenged Orders on March 10, 2009,
the Judgment in favor of petitioners was not yet rendered. Consequently, there was still, at that time, a real
dispute as to who the rightful set of officers were. Plainly, Judge Tiongson-Tabora should not have issued
the challenged Orders and should have, instead, suspended the proceedings until Civil Case No. 6623-R was
resolved with finality.
To grant the instant petition and rule that the procedural infirmity has subsequently been cured either by
the Judgment or by Judge Tiongson-Tabora�s inhibition would mean condoning the continuation of the
criminal proceedings despite, at that time, the existence of a prejudicial question. Such condonation would
create a precedent that renders inutile the doctrine on prejudicial question, such that the court trying the
criminal case will be permitted to proceed with the trial in the aberrant assumption that the resolution of the
prior instituted civil case would benefit the private complainant in the criminal proceedings. To reiterate,
there was no certainty yet on how the RTC, Branch 59 would rule; thus, no assumption on Civil Case No.
6623-R�s resolution can be made when the challenged Orders were issued. Indeed, had the RTC, Branch 59
not given credence to petitioners� arguments,it would have led to an awkward situation wherein much time
and effort is wasted by the RTC, Branch 7 in trying criminal cases it should not have entertained.

The foregoing notwithstanding, it should be made clear that the nullification of the March 10, 2009 Orders
does not, under the premises, entail the dismissal of the instituted criminal cases, but would merely result in
the suspension of the proceedings in view of the prejudicial question. However, given the resolution of the
prejudicial question and Judge Tiongson-Tabora�s inhibition, Criminal Case Nos. 29175-R and 29176-R may
already proceed, and ought to be re-raffled to re-determine the existence of probable cause for the issuance
of warrants of arrest against respondents.

WHEREFORE, premises considered, the petition is hereby DENIED for lack of merit. The Court of Appeals�
August 30, 2012 Decision and January 13, 2014 Resolution in CA-G.R. SP No. 108617 are
hereby AFFIRMED.

Criminal Case Nos. 29175-R and 29176-R are hereby REMANDED to the Executive Judge of the Regional
Trial Court of Baguio City to be re-raffled to one of its branches other than Branch 7.

SO ORDERED. cralawlawlibra ry

Peralta, Villarama, Jr., Perez,* and Jardeleza, JJ., concur.

RULE 112: BURGUNDY REALTY CORPORATION VS REYES 687 SCRA 524

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 181021 December 10, 2012

BURGUNDY REALTY CORPORATION, Petitioner,

vs.
JOSEFA "JING" C. REYES and SECRETARY RAUL GONZALEZ of the DEPARTMENT OF
JUSTICE,Respondents.

DECISION

PERALTA, J.:

For resolution of this Court is the Petition for Review on Certiorari, dated February 13, 2008, of
petitioner Burgundy Realty Corporation, seeking to annul and set aside the Decision 1 and Resolution
of the Court of Appeals (CA), dated September 14, 2007 and December 20, 2007, respectively.

The facts follow.

Private respondent Josefa "Jing" C. Reyes (Reyes), sometime in 1996, offered her services to
petitioner as the latter's real estate agent in buying parcels of land in Calamba, Laguna, which are to
be developed into a golf course. She informed petitioner that more or less ten (10) lot owners are her
clients who were willing to sell their properties. Convinced of her representations, petitioner released
the amount of ₱23,423,327.50 in her favor to be used in buying those parcels of land. Reyes,
instead of buying those parcels of land, converted and misappropriated the money given by
petitioner to her personal use and benefit. Petitioner sent a formal demand for Reyes to return the
amount of ₱23,423,327.50, to no avail despite her receipt of the said demand. As such, petitioner
filed a complaint for the crime of Estafa against Reyes before the Assistant City Prosecutor's Office
of Makati City.

Reyes, while admitting that she acted as a real estate agent for petitioner, denied having converted
or misappropriated the involved amount of money. She claimed that the said amount was used
solely for the intended purpose and that it was petitioner who requested her services in procuring the
lots. According to her, it was upon the petitioner's prodding that she was constrained to contact her
friends who were also into the real estate business, including one named Mateo Elejorde. She
alleged that prior to the venture, Mateo Elejorde submitted to her copies of certificates of title, vicinity
plans, cadastral maps and other identifying marks covering the properties being offered for sale and
that after validating and confirming the prices as well as the terms and conditions attendant to the
projected sale, petitioner instructed her to proceed with the release of the funds. Thus, she paid
down payments to the landowners during the months of February, March, July, August, September
and October of 1996. Reyes also insisted that petitioner knew that the initial or down payment for
each lot represented only 50% of the purchase price such that the remaining balance had to be paid
within a period of thirty (30) days from the date of receipt of the initial payment. She added that she
reminded petitioner, after several months, about the matter of unpaid balances still owing to the lot
owners, but due to lack of funds and non-infusion of additional capital from other investors, petitioner
failed to pay the landowners of their remaining unpaid balances. Meanwhile, Reyes received
information that her sub-broker Mateo Elejorde had been depositing the involved money entrusted to
him under his personal account. On March 28, 2000, through a board resolution, petitioner allegedly
authorized Reyes to institute, proceed, pursue and continue with whatever criminal or civil action
against Mateo Elejorde, or such person to whom she may have delivered or entrusted the money
she had received in trust from the firm, for the purpose of recovering such money. Thus, Reyes filed
a complaint for the crime of estafa against Mateo Elejorde before the City Prosecutor's Office of
Makati City docketed as I.S. No. 98-B-5916-22, and on March 30, 2001, Mateo Elejorde was indicted
for estafa.

After a preliminary investigation was conducted against Reyes, the Assistant Prosecutor of Makati
City issued a Resolution2 dated April 27, 2005, the dispositive portion of which reads:

In view thereof, it is most respectfully recommended that respondent be indicted of the crime of
Estafa defined and penalized under the Revised Penal Code. It could not be said that she has
violated the provision of PD 1689 for it was not shown that the money allegedly given to her were
funds solicited from the public. Let the attached information be approved for filing in court. Bail
recommendation at Php40,000.00.3

Thereafter, an Information for the crime of Estafa under Article 315, par. 1 (b) of the Revised Penal
Code (RPC) was filed against Reyes and raffled before the RTC, Branch 149, Makati City.

Undeterred, Reyes filed a petition for review before the Department of Justice (DOJ), but it was
dismissed by the Secretary of Justice through State Prosecutor Jovencito Zuño on June 1, 2006.

Aggrieved, Reyes filed a motion for reconsideration, and in a Resolution4 dated July 20, 2006, the
said motion was granted. The decretal text of the resolution reads:

Finding the grounds relied upon in the motion to be meritorious and in the interest of justice, our
Resolution of June 1, 2006 is hereby RECONSIDERED and SET ASIDE. Accordingly, the petition
for review filed by respondent-appellant Josefa Reyes is hereby given due course and will be
reviewed on the merits and the corresponding resolution will be issued in due time.

SO ORDERED.

On September 22, 2006, Secretary of Justice Raul Gonzalez issued a Resolution5 granting the
petition for review of Reyes, the fallo of which reads:

WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The City Prosecutor
of Makati City is directed to cause the withdrawal of the information for estafa filed in court against
respondent Josefa "Jing" C. Reyes and to report the action taken within five (5) days from receipt
hereof.

SO ORDERED.6

Petitioner filed a motion for reconsideration, but was denied by the Secretary of Justice in a
Resolution dated December 14, 2006. Eventually, petitioner filed a petition for certiorari under Rule
65 of the Rules of Court with the CA. The latter, however, affirmed the questioned Resolutions of the
Secretary of Justice. The dispositive portion of the Decision dated September 14, 2007 reads:
WHEREFORE, premises considered, the assailed Resolutions, dated 22 September 2006 and 14
December 2006[,] both rendered by public respondent Secretary of Justice, are hereby AFFIRMED
in toto.

SO ORDERED.7

Its motion for reconsideration having been denied by the CA in a Resolution dated December 20,
2007, petitioner filed the present petition and the following are the assigned errors:

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ
SECRETARY, RAUL GONZALEZ, CAPRICIOUSLY, ARBITRARILY AND WHIMSICALLY
DISREGARDED THE EVIDENCE ON RECORD SHOWING THE [EXISTENCE] OF
PROBABLE CAUSE AGAINST PRIVATE RESPONDENT FOR ESTAFA UNDER ARTICLE
315 1(b) OF THE REVISED PENAL CODE.

II

THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING BUT INSTEAD

CONCURRED IN WITH THE DOJ SECRETARY, RAUL GONZALEZ, WHO BY GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION HELD
THAT NOT ALL OF THE ELEMENTS OF ESTAFA UNDER ARTICLE 315 1 (b),
PARTICULARLY THE ELEMENT OF MISAPPROPRIATION, WERE NOT SUFFICIENTLY
ESTABLISHED IN THIS CASE.

III

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT THE DOJ
SECRETARY, RAUL GONZALEZ, ACTED WITH GRAVE ABUSE OF DISCRETION IN
ACCEPTING AS TRUTH WHAT WERE MATTERS OF DEFENSE BY PRIVATE
RESPONDENT IN HER COUNTER-AFFIDAVIT WHICH SHOULD HAVE BEEN PROVEN
AT THE TRIAL ON THE MERITS.8

The petition is meritorious.

It is not disputed that decisions or resolutions of prosecutors are subject to appeal to the Secretary
of Justice who, under the Revised Administrative Code,9 exercises the power of direct control and
supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors
finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes,
abuses or negligence committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative authorities, and not directly by
courts.10

In the present case, after review and reconsideration, the Secretary of Justice reversed the
investigating prosecutor's finding of probable cause that all the elements of the crime of estafa are
present. Estafa, under Article 315 (1) (b) of the Revised Penal Code, is committed by –

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow:
 xxxx

1. With unfaithfulness or abuse of confidence, namely:

(a) x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any

other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other property; x x x

The elements are:

1) that money, goods or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return, the same;

2) that there be misappropriation or conversion of such money or property by the offender, or

denial on his part of such receipt;

3) that such misappropriation or conversion or denial is to the prejudice of another; and

4) that there is demand made by the offended party on the offender.11

The essence of estafa under Article 315, par. 1 (b) is the appropriation or conversion of money or
property received to the prejudice of the owner. The words "convert" and "misappropriate" connote
an act of using or disposing of another's property as if it were one's own, or of devoting it to a
purpose or use different from that agreed upon. To misappropriate for one's own use includes not
only conversion to one's personal advantage, but also every attempt to dispose of the property of
another without right.12

In reversing the finding of probable cause that the crime of estafa has been committed, the
Secretary of Justice reasoned out that, [the] theory of conversion or misappropriation is difficult to
sustain and that under the crime of estafa with grave abuse of confidence, the presumption is that
the thing has been devoted to a purpose or is different from that for which it was intended but did not
take place in this case. The CA, in sustaining the questioned resolutions of the Secretary of Justice,
1âwphi1

ruled that the element of misappropriation or conversion is wanting. It further ratiocinated that the
demand for the return of the thing delivered in trust and the failure of the accused to account for it,
are circumstantial evidence of misappropriation, however, the said presumption is rebuttable and if
the accused is able to satisfactorily explain his failure to produce the thing delivered in trust, he may
not be held liable for estafa. 1âw phi1

It must be remembered that the finding of probable cause was made after conducting a preliminary
investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a
case.13 Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is
a probable cause to believe that the accused is guilty thereof.14

This Court need not overemphasize that in a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or sufficient ground to engender a well-founded belief
that a crime has been committed, and that the respondent is probably guilty thereof and should be
held for trial. It does not call for the application of rules and standards of proof that a judgment of
conviction requires after trial on the merits.15 The complainant need not present at this stage proof
beyond reasonable doubt.16 A preliminary investigation does not require a full and exhaustive
presentation of the parties' evidence.17 Precisely, there is a trial to allow the reception of evidence for
both parties to substantiate their respective claims.18

A review of the records would show that the investigating prosecutor was correct in finding the
existence of all the elements of the crime of estafa. Reyes did not dispute that she received in trust
the amount of ₱23,423,327.50 from petitioner as proven by the checks and vouchers to be used in
purchasing the parcels of land. Petitioner wrote a demand letter for Reyes to return the same
amount but was not heeded. Hence, the failure of Reyes to deliver the titles or to return the
entrusted money, despite demand and the duty to do so, constituted prima facie evidence of
misappropriation. The words convert and misappropriate connote the act of using or disposing of
another's property as if it were one's own, or of devoting it to a purpose or use different from that
agreed upon.19 To misappropriate for one's own use includes not only conversion to one's personal
advantage, but also every attempt to dispose of the property of another without right.20 In proving the
element of conversion or misappropriation, a legal presumption of misappropriation arises when the
accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an
account of their whereabouts.21 Thus, the mere presumption of misappropriation or conversion is
enough to conclude that a probable cause exists for the indictment of Reyes for Estafa. As to
whether the presumption can be rebutted by Reyes is already a matter of defense that can be best
presented or offered during a full-blown trial.

To reiterate, probable cause has been defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was prosecuted.22 Probable
cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a
state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence
to believe, or entertain an honest or strong suspicion, that a thing is so.23 The term does not mean
"actual or positive cause" nor does it import absolute certainty.24 It is merely based on opinion
and reasonable belief.25 Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction.26 It is enough that it is believed
that the act or omission complained of constitutes the offense charged.27

WHEREFORE, premises considered, the present Petition is hereby GRANTED and, accordingly, the
Decision and Resolution of the Court of Appeals, dated September 14, 2007 and December 20,
2007, respectively, are hereby REVERSED and SET ASIDE. Consequently, the Regional Trial
Court, Branch 149, Makati City, where the Information was filed against private respondent Josefa
"Jing" C. Reyes, is hereby DIRECTED to proceed with her arraignment.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

ARTURO D. BRION*
Associate Justice

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice
 MARVIC MARION VICTOR F. LEONEN

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

DIOSDADO M. PERALTA**
Associate Justice
Acting Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
RULE 112: HEIRS OF NESTOR TRIA VS OBIAS, 635 SCRA 91

THIRD DIVISION

HEIRS OF THE LATE NESTOR G.R. No. 175887

TRIA,
Petitioners, Present:

CARPIO MORALES, J.,

Chairperson,
- versus - BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.

ATTY. EPIFANIA OBIAS, Promulgated:

Respondent.
November 24, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, as amended, seeking to reverse and set aside the
Decision[1] dated August 14, 2006 and Resolution[2] dated December 11, 2006 of
the Court of Appeals (CA) in CA-G.R. SP No. 86210. The CA denied the petition
for mandamus/certiorari filed by the petitioners which assailed the
Order[3] dated March 24, 2004 of the Office of the President (OP) dismissing the
murder charge against the respondent.

The factual antecedents are as follows:

On May 22, 1998, at around 10:00 oclock in the morning at the Pili Airport in
Camarines Sur, Engr. Nestor Tria, Regional Director of the Department of Public
Works and Highways (DPWH), Region V and concurrently Officer-In-Charge of
the 2nd Engineering District of Camarines Sur, was shot by a gunman while waiting
to board his flight to Manila. He was brought to a hospital but died the following
day from the lone gunshot wound on his nape. Subsequently, the incident was
investigated by the National Bureau of Investigation (NBI).

On July 31, 1998, NBI Regional Director Alejandro R. Tenerife, Chairman of Task
Force Tria, recommended to the Provincial Prosecutor of Camarines Sur the
indictment of Roberto Obet Aclan y Gulpo, Juanito Totoy Ona y Masalonga and
Atty. Epifania Fanny Gonzales-Obias, for the murder of Engr. Tria.

On the basis of statements given by twenty-six (26) individuals, autopsy and

ballistic examination reports, and relevant documents gathered,[4] the NBI
submitted its findings, as follows:
Our investigation disclosed that about two weeks before the incident ACLAN and
ONA had been conducting an almost daily stakeout at the DPWH 2nd Engineering
District of Camarines Sur in Sta. Elena, Iriga City where Regional Director TRIA
was holding office from time to time as District Engineer in concurrent
capacity. Alternately ACLAN and ONA would ask the security guard on duty if
Director TRIA had already arrived and the usual days and time of his coming to
the office. At noontime or early afternoon, after waiting vainly for TRIAs arrival,
the duo would leave, riding tandem on a red motorcycle. During their surveillance
it was ONA who frequently sat on the couch at the lobby of
the Engineering Building while ACLAN was waiting near their motorcycle at the
parking space. At times ONA would approach ACLAN to whisper a message and
the latter would relay the message to someone else through a hand-held
radio.There were also some instances when ACLAN would wait at the lobby
while ONA was staying near the parked motorcycle. At one instance an employee
had noticed a gun tucked on the waistline of ACLAN.

Around 8:00 oclock in the morning of May 22, 1998, ACLAN and ONA were
spotted in their usual places at the 2nd Engineering District in Iriga City. ONA was
wearing a loose, yellow long sleeved shirt, maong pants and a pair of sneakers;
ACLAN was in a white and gray striped shirt and a pair of maong pants. Shortly
before 9:00 a.m. on that day, THEO RUBEN CANEBA, a DPWH employee and
newly elected Municipal Councilor of Buhi, Camarines Sur, arrived. He was
warmly greeted and congratulated by his former co-employees outside the
engineering building. It was at this point when CANEBA noticed a man about 54
in height, sturdy, with semi-curly hair, wearing a white and gray-striped shirt with
maong pants and about 40 years old. The man (later identified through his
photograph as ROBERTO ACLAN) was looking intensely at him and was
shifting position from left to right to get a better view of him. Obviously, ACLAN
was trying to figure out whether CANEBA was Director TRIA. After about 20
minutes, Administrative Officer JOSE PECUNDO announced to those who had
some documents for signature of Director TRIA to proceed to Pili Airport where
TRIA would sign them before leaving for Manila. Upon hearing this, ACLAN
and ONA left hurriedly on board a red motorcycle. No sooner had ACLAN and
ONA left that CANEBA cautioned the guards to be extra alert because he had
some sense of foreboding about that man (referring to ACLAN).

Shortly after 10:00 a.m. on that day, Director TRIA arrived at the Airport. After
signing some documents at the parking lot he proceeded towards the pre-
departure area on the second floor of the airport building. ONA, who was waiting
on the stairway, immediately followed TRIA as the latter was going up the
stairs. As TRIA was approaching the pre-departure area he was met by Atty.
[E]PIFANIA OBIAS who shook his hands and started conversing with him. It
was at this juncture that a gunshot rang out and TRIA dropped like a log on the
floor, bleeding profusely from a gunshot wound at the back of his head. As a
commotion ensued, ONA was seen running down the stairway while tucking a
gun on his waistline. Even before ONA could come out of the doorway, ACLAN
was already outside the building, pointing a handgun at everybody obviously to
discourage any attempt of pursuit while swiftly stepping backward to where their
motorcycle was parked. He then fired shots at an army man who tried to chase
ONA. The army man, who was then unarmed, sought cover behind a parked
van. ACLAN and ONA then boarded a red motorcycle and sped away. Director
TRIA died from a lone gunshot wound on his nape at
the Mother Seton Hospital in Naga City the following day.

Atty. EPIFANIA OBIAS, on the other hand, admitted that she was with
ROBERTO OBET ACLAN in the early morning of May 22, 1998; that at about
7:00 a.m. on that day she went to the residence of Director TRIA at Liboton, Naga
City, had a brief talk with the latter and left immediately. She also volunteered the
information that ROBERTO ACLAN was not the gunman who had fired the fatal
shot at Director TRIA. She was also the last person seen talking with Director
TRIA when the latter was gunned down. A practicing lawyer, Atty. OBIAS also
engages herself in real estate business on the side. In 1997 she had brokered a sale
of real estate between and among spouses PRUDENCIO and LORETA
JEREMIAS, as Vendors, and Spouses NESTOR and PURA TRIA, as Vendees,
over a .9165 hectare of land in Balatas, Naga City. It was Atty. OBIAS who
received, for and in behalf of the vendors, the full payment of P2.8 Million of the
sale from the TRIAs with the agreement that Atty. OBIAS would take care of all
legal processes and documentations until the Deed of Absolute Sale is delivered
to the TRIA family. After the death of TRIA, the surviving spouse and heirs made
several attempts to contact Atty. OBIAS to demand immediate delivery of the
deed of sale, but the latter deliberately avoided the TRIA family and, despite
verbal and written demands, she failed and refused, as she still fails and refuses,
to fulfill her legal obligation to the TRIA family. At one instance, a representative
of the TRIA family had chanced upon Atty. OBIAS at her residence and
demanded of her to deliver the deed of sale to the TRIA family immediately. But
Atty. OBIAS replied that Director TRIA had already disposed of the property
before his death, a claim that can no longer be disputed by Director TRIA as his
lips had already been sealed forever, except for the fact that neither the surviving
 spouse nor anyone of the heirs had given any consent to the purported subsequent
sale.

During the lifetime of Director TRIA, Atty. OBIAS was one of the frequent
visitors of the TRIA family and had been known to the family members as a
friend and a close associate of Director TRIA. Yet, she never attended the wake of
Director TRIA nor made any gesture of sympathy or condolence to the TRIA
family up to the present time.[5]

During the preliminary investigation conducted by the Office of the Provincial

Prosecutor, respondent filed her Counter-Affidavit denying that she was in anyway
involved with the killing of Engr. Tria. Respondent admitted that Engr. Tria was a
longtime friend and that she went to his residence at about 7:30 oclock in the
morning of May 22, 1998. Since Engr. Tria had many visitors at that time, they just
agreed to see each other at the airport later. Respondent denied having admitted to
NBI Supervising Agent (SA) Atty. Manuel Eduarte that she was with Aclan then,
and neither did she volunteer the information that Aclan was not the triggerman.
Respondent submitted the sworn statement of Edgar Awa, one of those witnesses
interviewed by the NBI, who declared that Aclan and Ona were at the Iriga City
DPWH Office in the morning of May 22, 1998 at 8:00 oclock in the morning. Such
is also corroborated by the sworn statement of another NBI witness, Theo Ruben
Caneba, who declared that when he arrived at the DPWH Iriga office at about 8:30
oclock in the morning of May 22, 1998, he noticed the presence of Aclan who was
supposedly eyeing him intensely, and that after it was announced that those who
have some transactions with Engr. Tria should just proceed to the airport, Caneba
saw Aclan with a companion later identified as Ona, immediately left the compound
in a motorcycle.[6]

Respondent likewise denied that she met Engr. Tria as the latter was approaching
the pre-departure area of the airport and that she supposedly shook his hands. The
truth is that when she and Engr. Tria met at the airport, the latter took her by the
arm and led her to a place where they talked. Respondent asserted that from the
totality of evidence gathered by the NBI, it has not established prima facie the
existence of conspiracy as to implicate her in the death of Engr. Tria.[7]

On July 2, 1999, the Office of the Provincial Prosecutor of Camarines Sur

issued a resolution[8] directing the filing of an information for murder against Aclan
and Ona but dismissing the case for insufficiency of evidence as against herein
respondent, Atty. Epifania Obias.
Petitioners appealed to the Department of Justice (DOJ) assailing the Provincial
Prosecutors order to dismiss the charge against respondent.[9] On January 25, 2000,
then Justice Secretary Serafin Cuevas issued a Resolution[10] modifying the July 2,
1999 resolution of the Provincial Prosecutor and directing the latter to include
respondent in the information for murder filed against Aclan and Ona.

The DOJ agreed with the contention of petitioners that there is interlocking
circumstantial evidence sufficient to show that respondent conspired with Aclan
and Ona in the killing of Engr. Tria. It cited the following circumstances: (1)
Despite respondents admission regarding her friendship and close association with
Engr. Tria, her visit at his house early morning of the same day, and her presence
at the airport where she met Engr. Tria and was the person last seen with him,
respondent never lifted a finger to help Engr. Tria when he was gunned down and
neither did she volunteer to help in the investigation of Engr. Trias murder nor visit
the grieving family to give her account of the fatal shooting of Engr. Tria, which
behavior negates her claim of innocence; (2) In the sworn statement of NBI SA
Manuel Eduarte, he declared that respondent admitted to him that she and Aclan
were together when she went to the residence of Engr. Tria at 7:30 in the morning
of May 22, 1998 and that while she later denied such admission and explained that
Aclan could not have been with her as the latter was at the DPWH Regional office
at about 8:00 a.m., such does not render impossible the fact of Aclans presence at
the residence of Engr. Tria considering that the time given was mere approximation
by respondent not to mention the possibility that Aclan could have easily gotten to
the DPWH office after coming from the house of Engr. Tria using the same
motorcycle which Aclan used as get-away vehicle at the airport; (3) SA Eduartes
statement cannot be simply disregarded as he had no ill motive to impute upon
respondent the said admission; and (4) The double sale of the property wherein the
Tria spouses already paid P2.8 million to respondent who brokered the sale, only to
sell it to another buyer for P3.3 million, without turning over to the Tria family the
deed of sale and her failure to attend to the registration of the land in the name of the
Tria spouses this strongly establishes the fact that respondent had the strongest
motive to have Engr. Tria murdered by Aclan and Ona who were obviously guns for
hire. Also mentioned was the respondents representation of Aclan as the latters
defense lawyer in a frustrated murder case which was dismissed. Such client-lawyer
relationship could have spawned respondents ascendancy over Aclan.[11]

The DOJ was thus convinced that the sequence of events and respondents
conduct before, during and after the killing of Engr. Tria undeniably points to her
complicity with Aclan and Ona. Moreover, it pointed out that respondents defense
consisted merely of denial which cannot prevail over the positive allegations of
witnesses showing her complicity with the gunmen in the perpetration of the
crime.[12]

Respondent along with Aclan and Ona filed a motion for reconsideration of
the DOJs January 25, 2000 resolution.[13] On February 18, 2000, Justice Secretary
Artemio G. Tuquero issued a directive to State Prosecutor Josefino A. Subia who
was the Acting Provincial Prosecutor of Camarines Sur, to defer, until further
orders, the filing of the information for the inclusion of respondent, in order not to
render moot the resolution of the motion for reconsideration of the January 25,
2000 resolution.[14]

On September 17, 2001, then Justice Secretary Hernando B. Perez issued a

resolution denying respondents motion for reconsideration.[15]

In the meantime, the information charging Aclan and Ona has already been
filed with the Regional Trial Court (RTC) of Pili, Camarines Sur. Upon request
however, the venue was transferred to the RTC Quezon City by resolution of this
Court in A.M. No. 00-3145-RTC.[16]

Sometime in October 2001, the prosecution filed with the RTC Quezon City
a Motion to Admit Amended Information to include respondent as one of the
accused for the murder of Tria.[17]

On October 8, 2001, respondent filed a Notice of Appeal with the DOJ under
the provisions of Administrative Order No. 18, series of 1987.[18] In a letter dated
December 3, 2001 addressed to respondents counsel, the DOJ denied respondents
notice of appeal on the ground that pursuant to Memorandum Circular No. 1266
dated November 4, 1983, as amended by Memorandum Circular No. 58 dated June
30, 1993, appeals to the OP where the penalty prescribed for the offense charged is
reclusion perpetua to death, shall be taken by petition for review.[19] Respondent
filed a motion for reconsideration of the denial of her notice of appeal.[20]

It appears that on January 28, 2002, the RTC Quezon City issued an order
admitting the amended information which includes respondent. The latter then filed
with the RTC a Motion for Reconsideration with Prayer for the Suspension of the
Issuance of a Warrant of Arrest dated February 28, 2002, a copy of which was
furnished to the Legal Office of the OP on March 6, 2002.[21]
 On February 6, 2002, the DOJ denied respondents motion for reconsideration
stating that the proper procedure is the filing of an appeal or petition for review with
the OP and not before the DOJ. Hence, the case was considered closed and
terminated.[22] However, the DOJ directed the Provincial Prosecutor to forward the
records of the case to the OP in compliance with the Order dated October 18,
2001 of Deputy Executive Secretary Jose Tale.[23] It turned out that respondent filed
on October 1, 2001 a notice of appeal before the OP (O.P. Case No. 01-J-118).[24]

On June 27, 2003, Senior Deputy Executive Secretary Waldo Q. Flores

adopted the findings of facts and conclusions of law in the appealed Resolutions
dated January 25, 2000 and September 17, 2001 of the DOJ, and affirmed the
same.[25] Respondent filed a motion for reconsideration on September 17,
2003.[26] On December 3, 2003, respondent filed a Supplemental Pleading and
Submission of Newly Discovered Evidence.[27]

In his Order dated March 24, 2004, Presidential Assistant Manuel C. Domingo
granted respondents motion for reconsideration and reversed the DOJ resolutions.
It was held that mere close relationship without any corroborative evidence
showing intent to perpetrate the crime is not enough probable cause. The
conclusion that respondent was the only one interested in the death of Engr. Tria
because of the double sale from which respondent supposedly wanted to get away
from her obligation to the Tria spouses, was based merely on the opinion of SA
Eduarte. Also, since Mrs. Pura Tria admitted she knew of the said transaction, she
could very well file a civil case for collection such that even with the death of
Engr. Tria, respondent will not be able to evade her obligation. As to the presence
of both Aclan and respondent at the house of Engr. Tria early morning before the
incident took place, the same was not sufficiently established, as shown by the
affidavit of Felix Calayag. The OP thus concluded there was no interlocking
circumstantial evidence of respondents acts before, during and after the killing of
Engr. Tria that would establish conspiracy among Aclan, Ona and respondent to
commit the crime.Accordingly, the case against respondent was dismissed for
insufficiency of evidence.[28]

Petitioners filed a motion for reconsideration[29] which was denied by the OP in its
Order[30] dated June 10, 2004. Before the CA, petitioners filed a petition for
mandamus/certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended.
On August 14, 2006, the CA rendered the assailed Decision denying the
petition. On the issue of the alleged grave abuse committed by the OP in modifying
the findings of the DOJ instead of ordering the Secretary of Justice to
reopen/review the case in accordance with Memorandum Circular No. 58, the CA
held that it was not mandatory for the OP to do so. As for the evaluation of factual
matters and credence to be accorded to the testimonies of respondent and her
witnesses, the CA declared that these are not proper grounds in a petition for
certiorari which is confined only to the correction of errors of jurisdiction. Neither
will mandamus lie to compel the performance of a discretionary duty in view of
the failure of petitioners to show a clear and certain right to justify the grant of
relief.[31]

Their motion for reconsideration having been denied by the CA, petitioners are
now before us contending that the CA manifestly overlooked relevant facts which,
if properly considered, would justify a different conclusion. They maintain that the
CA decision is contrary to law and established jurisprudence.

Petitioners argue that since the preliminary investigation and review of the
resolution finding probable cause have already been terminated years before
respondents appeal to the OP -- more so with the earlier denial of the said appeal
for failing to raise any new issue not raised before the DOJ -- the alleged new
affidavits should have been referred to the DOJ for reinvestigation. As to the
affidavits of Calayag and Jennis Nidea, said witnesses have not been confronted by
the petitioners in violation of the latters right to due process. Thus, the CA decision
affirmed the OPs dismissal of the case against respondent at the level of the DOJ
without referral to the said office and without consideration of the pendency of the
case at RTC of Quezon City, Branch 76. Lacking such authority on appeal to
appreciate newly submitted affidavits of Calayag and Nidea, Presidential Assistant
Manuel C. Domingo arrogated unto himself the judicial task of analyzing the said
documents without confrontation of the witnesses by the other party. Further, the
CA overlooked the fact that such affidavits submitted by respondent as newly
discovered evidence was merely a ploy in order for her appeal to qualify as raising
new and material issues which were supposedly not raised before the DOJ.[32]

Petitioners further argue that the CA should not have affirmed the OPs dismissal of
the murder charge against the respondent pursuant to Crespo v. Mogul[33] that once
an information has been filed in court, any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the sound discretion
of the court.
On the procedural issue raised by the petitioners, we hold that the OP did not err in
taking cognizance of the appeal of respondent, and that the CA likewise had
jurisdiction to pass upon the issue of probable cause in a petition challenging the
OPs ruling.

Memorandum Circular No. 58[34] provides:

xxxx

No appeal from or petition for review of decisions/orders/resolutions of

the Secretary of Justice on preliminary investigations of criminal cases shall be
entertained by the Office of the President, except those involving offenses
punishable by reclusion perpetua to death wherein new and material issues are
raised which were not previously presented before the Department of Justice
and were not ruled upon in the subject decision/order/resolution, in which
case the President may order the Secretary of Justice to reopen/review the
case, provided, that, the prescription of the offense is not due to lapse within six
(6) months from notice of the questioned resolution/order/decision, and provided
further, that, the appeal or petition for review is filed within thirty (30) days from
such notice.

Henceforth, if an appeal or petition for review does not clearly fall within
the jurisdiction of the Office of the President, as set forth in the immediately
preceding paragraph, it shall be dismissed outright and no order shall be issued
requiring the payment of the appeal fee, the submission of appeal
brief/memorandum or the elevation of the records to the Office of the President
from the Department of Justice.

If it is not readily apparent from the appeal or petition for review that the
case is within the jurisdiction of the Office of the President, the
appellant/petitioner shall be ordered to prove the necessary jurisdictional facts,
under penalty of outright dismissal of the appeal or petition, and no order to pay
the appeal fee or to submit appeal brief/memorandum or to elevate the records of
the case to the Office of the President shall be issued unless and until the
jurisdictional requirements shall have been satisfactorily established by the
appellant/petitioner.

x x x x (Emphasis supplied.)

The offense for which respondent was charged is punishable by reclusion

perpetua to death, which is clearly within the jurisdiction of the OP in accordance
with Memorandum Circular No. 58. Respondents appeal was initially dismissed
when Senior Deputy Executive Secretary Waldo Q. Flores issued the Resolution
dated June 27, 2003 affirming in toto the appealed resolutions of the Secretary of
Justice and adopting the latters findings and conclusions. However, subsequent to
her filing of a motion for reconsideration of the said June 27, 2003 Resolution,
respondent filed a Supplemental Pleading and Submission of Newly Discovered
Evidence. The arguments of respondent in support of her motion for
reconsideration were duly considered by the OP in reexamining the appealed
resolutions. As the word may in the second paragraph of Memorandum Circular
No. 58 signifies, it is not mandatory for the President to order the DOJ to reopen or
review respondents case even if it raised new and material issues allegedly not yet
passed upon by the DOJ.Hence, the OP acted well within its authority in
reexamining the merits of respondents appeal in resolving the motion for
reconsideration.

In arguing that the CA gravely abused its discretion when it affirmed the OPs
dismissal of the murder charge against respondent, petitioner invoked our ruling
in Crespo v. Mogulthat any disposition of the case rests on the sound discretion of
the court once an information has been filed with it.

A refinement of petitioners understanding of the Crespo ruling is in

order. In Crespo, we ruled that after the information has already been filed in court,
the courts permission must be secured should the fiscal find it proper that
reinvestigation be made. Thereafter, the court shall consider and act upon the
findings and recommendations of the fiscal.

In Ledesma v. Court of Appeals,[35] we clarified that the justice secretary is not

precluded from exercising his power of review over the investigating prosecutor
even after the information has already been filed in court. However, the justice
secretarys subsequent resolution withdrawing the information or dismissing the
case does not cause the court to lose jurisdiction over the case. In fact, the court is
duty-bound to exercise judicial discretion and its own independent judgment in
assessing the merits of the resulting motion to dismiss filed by the prosecution, to
wit:
When confronted with a motion to withdraw an information on the ground
of lack of probable cause based on a resolution of the secretary of justice, the
bounded duty of the trial court is to make an independent assessment of the merits
of such motion. Having acquired jurisdiction over the case, the trial court is not
bound by such resolution but is required to evaluate it before proceeding further
with the trial. While the secretarys ruling is persuasive, it is not binding on
courts. A trial court, however, commits reversible error or even grave abuse of
discretion if it refuses/neglects to evaluate such recommendation and simply
 insists on proceeding with the trial on the mere pretext of having already acquired
jurisdiction over the criminal action. (Underscoring supplied.)

Further, it is well within the courts sound discretion to suspend arraignment to

await the result of the justice secretarys review of the correctness of the filing of
the criminal information.[36] There are exceptional cases, such as in Dimatulac v.
Villon[37] wherein we have suggested that it would have been wiser for the court to
await the justice secretarys resolution before proceeding with the case to avert a
miscarriage of justice. Evidently however, this is not a hard and fast rule, for the
court has complete control over the case before it.

Petitioners argument that the non-referral by the OP to the DOJ of the appeal or
motion for reconsideration filed by the respondent had deprived them of the
opportunity to confront and cross-examine the witnesses on those affidavits
belatedly submitted by the respondent is likewise untenable. Under the procedure
for preliminary investigation provided in Section 3, Rule 112 of the Revised Rules
of Criminal Procedure, as amended,[38] in case the investigating prosecutor
conducts a hearing where there are facts and issues to be clarified from a party or
witness, [t]he parties can be present at the hearing but without the right to examine
or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.[39] Hence, the
non-referral by the OP to the DOJ of the motion for reconsideration of respondent,
in the exercise of its discretion, did not violate petitioners right to due process.

In resolving the issue of whether the CA gravely abused its discretion in affirming
the OPs reversal of the ruling of the Secretary of Justice, it is necessary to
determine whether probable cause exists to charge the respondent for conspiracy in
the murder of Engr. Tria.

A prosecutor, by the nature of his office, is under no compulsion to file a particular

criminal information where he is not convinced that he has evidence to prop up its
averments, or that the evidence at hand points to a different conclusion. The
decision whether or not to dismiss the criminal complaint against respondent is
necessarily dependent on the sound discretion of the investigating prosecutor and
ultimately, that of the Secretary of Justice.[40]

The findings of the prosecutor with respect to the existence or non-existence

of probable cause is subject to the power of review by the DOJ. Indeed, the
Secretary of Justice may reverse or modify the resolution of the prosecutor, after
which he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the
parties.[41] Ordinarily, the determination of probable cause is not lodged with this
Court. Its duty in an appropriate case is confined to the issue of whether the
executive or judicial determination, as the case may be, of probable cause was
done without or in excess of jurisdiction or with abuse of discretion amounting to
want of jurisdiction.

However, this Court may ultimately resolve the existence or non-existence

of probable cause by examining the records of the preliminary investigation when
necessary for the orderly administration of justice,[42] or to avoid oppression or
multiplicity of actions.[43]

In reversing the DOJs finding of probable cause, the OP found merit in the
argument of the respondent that the DOJs finding that she was with Aclan when
she went to the residence of Engr. Tria early in the morning of May 22, 1998, was
not sufficiently established. The OP gave more weight to the affidavit[44] of
Calayag (attached to respondents supplemental pleading on motion for
reconsideration) -- stating that Aclan was not around when they and respondent,
among other visitors, were at Engr. Trias house at that time -- than that account
given by SA Eduarte which was uncorroborated. As to the double sale allegedly
committed by the respondent from which the latters strong motive to liquidate
Engr. Tria was inferred, the OP found this as a mere expression of opinion by the
investigators considering that Engr. Trias widow, Mrs. Pura Tria, categorically
admitted her knowledge of the said transaction. Neither was the OP persuaded by
the NBIs kiss of death theory since it is but a customary way of greeting a friend to
shake hands and hence it cannot imply that respondent utilized this as a signal or
identification for the gunman to shoot Engr. Tria. Respondents alleged indifference
immediately after Engr. Tria was gunned down while conversing with her, was
also negated by the affidavit of an employee of Philippine Air Lines based at
the Pili Airport, stating that right after the incident took place he saw respondent in
the radio room in shock and was being given water by another person.

Considering the totality of evidence, the OP was convinced there was

nothing suspicious or abnormal in respondents behavior before, during and after
the fatal shooting of Engr. Tria as to engender a well-founded belief of her
complicity with the killing of Engr. Tria, thus:
 The act of Obias in failing to help the deceased when the latter was shot
should not be taken against her. In a tragic moment such as the incident, it is safe
to assume that one could be overtaken by shock, grief or fear especially if the one
involved is an acquaintance or a friend, leaving the former unable to act or think
properly. Obias could have been overtaken by shock or grief making her body
unable to function or think properly.

Moreover, the act of Obias in failing to contact or to visit the family of the
deceased during the wake of the latter should not be taken against her. With
rumors circulating that she is a possible primary suspect over the death of Engr.
Tria, and to avoid any unnecessary confrontation with the family of the latter,
whose emotions could be uncontrollable or animated by anger or revenge, Obias
act in keeping her silence and distance is permissive.

The behavior of Obias before, during and after the incident should not be
taken against her. It is worthy to note that Obias was confronted with
extraordinary situations or circumstances wherein a definite or common behavior
could not be easily formulated or determined. Ones behavior or act during said
extraordinary situations should not prejudice the actor if the latter failed to act or
behave in such a manner acceptable to all or which, upon reflection afterwards,
could be deemed the more appropriate, common or acceptable reaction.

Obias actions could be presumed common or acceptable considering the

attendant circumstances surrounding the same, and they do not evince or show
any malice or intent whatsoever.[45]

The relevant portion of SA Eduartes affidavit reads:

3. That our first meeting was on or about 10:00 AM of May 25, 1998 at
our office. She was accompanied by a certain RODEL who was introduced as her
Office Assistant. On said meeting she verbally admitted the fact that she was the
last person conversing with Dir. Tria when shot at the airport on or about 10:20
AM of May 22, 1998; that the shooting took place even before her first step after
their short talk, but she could not identify the assailant/s because she had blacked
out or became senseless because of fear;

4. That our second meeting was on or about 11:20 AM of May 28, 1998 at
our office and she was alone then. That she stood pat on her claim that she was
overwhelmed with fear and became oblivious of her surroundings after the
gunshot that hit Dir TRIA. When asked about the veracity of the information that
she was seen at TRIAs residence at Molave St., Liboton, NagaCity, Atty. Obias
admitted that she was indeed at the residence of Director TRIA at around 7:30
AM of May 22, 1998, claiming her visit as official matter, she being the lawyer of
the victim in some cases;

5. That finally we met on or about 5:00 PM of June 1, 1998 at the

restaurant of Villa Caceres Hotel, Magsaysay Avenue, Naga City, upon
 arrangement made by our former Assistant Regional Director FRANCISCO
FRANK OBIAS of NBI (now retired) and father-in-law of Atty. FANNY OBIAS;
That said meeting materialized when on the morning of the said date, Atty.
FRANK OBIAS visited me at the office asking why her daughter-in-law
FANNY was being implicated in the case of TRIA. Verbally, he said, FANNY
had admitted to him that our suspect ROBERTO OBET ACLAN was with
her at the residence of TRIA at about 7:30 AM on 22 May 1998, but he
(Aclan) was not the triggerman. During this meeting, ATTY. FRANK OBIAS
was also around. Atty. FANNY OBIAS said she was worried because two (2)
men who introduced themselves as NBI Agents visited her mother at Godofredo
Reyes, Sr., (GRS) Ragay, Camarines Sur, telling the latter that she, (FANNY) was
being tagged as the finger (identifier of the victim to the assailant) in the case of
TRIA. This matter causes anxiety to her mother, she said. On said meeting, she
admitted OBET ACLAN was with her at the residence of TRIA on or about 7:30
AM on May 22, 1998, and further, that OBET ACLAN was actually at the Pili
Airport on that morning but insisted that ROBERTO OBET ACLAN was not the
triggerman; x x x.[46] (Emphasis supplied.)

In its Comment filed before the CA, the Solicitor General argued that the
alleged interlocking circumstantial evidence is pure speculation. To render even a
preliminary finding of culpability based thereon does not sit well with the
cherished right to be presumed innocent under Section 14 (2), Article III of
the 1987 Constitution. Moreover, the case for the prosecution must stand or fall on
its own merit and cannot be allowed to draw strength from the weakness of
evidence for the defense.[47]

Petitioners, however, maintain that the records are replete with abundant
proof of respondents complicity in the murder of Engr. Tria. They cite the
following circumstances showing the existence of probable cause against the
respondent: (1) In a radio interview in Naga City sometime in August 1998,
respondent admitted that Aclan is her relative and that she is close to the family of
Ona; (2) Respondent was present at the residence of Engr. Tria in the morning of
May 22, 1998 between 7:00 to 7:30 a.m. with passengers in her vehicle waiting
outside, and when later she was invited by the NBI as possible witness considering
that she was the last person seen talking to Engr. Tria before the latter was gunned
down at the airport, respondent admitted to SA Eduarte that Aclan was with her
that morning at the residence of Engr. Tria; (3) The pre-arranged signal provided
by respondent was in the form of a handshake while Ona was at the stairway
observing the two, and thereupon Ona waited for the right moment to shoot Engr.
Tria from behind; (4) Respondent despite having claimed to be a friend of the Tria
family, just left the scene of the crime without asking for help to render assistance
to her fallen friend; instead, she just boarded the plane as if no astounding event
took place before her very eyes which snuffed the life of her longtime client-friend;
and (5) In a conduct unbecoming of Filipinos, respondent never bothered to see the
grieving family of Engr. Tria at anytime during the wake, burial or thereafter, and
neither did she give them any account of what she saw during the shooting
incident, which does not constitute normal behavior.

Probable cause is defined as the existence of such facts and circumstances as

would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted.[48] It is a reasonable ground of presumption that a matter
is, or may be, well-founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean actual and
positive cause nor does it import absolute certainty. It is merely based on opinion
and reasonable belief.[49] A finding of probable cause merely binds over the suspect
to stand trial; it is not a pronouncement of guilt.[50]

On the other hand, conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit
it.[51] Direct proof of previous agreement to commit a crime is not
necessary. Conspiracy may be shown through circumstantial evidence, deduced
from the mode and manner in which the offense was perpetrated, or inferred from
the acts of the accused themselves when such lead to a joint purpose and design,
concerted action, and community of interest.[52]

We reverse the OPs ruling that the totality of evidence failed to establish
a prima facie case against the respondent as a conspirator in the killing of Engr.
Tria.

To begin with, whether or not respondent actually conspired with Aclan and
Ona need not be fully resolved during the preliminary investigation. The absence
or presence of conspiracy is factual in nature and involves evidentiary matters. The
same is better left ventilated before the trial court during trial, where the parties can
adduce evidence to prove or disprove its presence.[53]
 Preliminary investigation is executive in character. It does not contemplate a
judicial function. It is essentially an inquisitorial proceeding, and often, the only
means of ascertaining who may be reasonably charged with a
crime.[54] Prosecutors control and direct the prosecution of criminal offenses,
including the conduct of preliminary investigation, subject to review by the
Secretary of Justice. The duty of the Court in appropriate cases is merely to
determine whether the executive determination was done without or in excess of
jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of
Justice are not subject to review unless made with grave abuse.[55]

After a careful evaluation of the entire evidence on record, we find no such grave
abuse when the Secretary of Justice found probable cause to charge the respondent
with murder in conspiracy with Aclan and Ona. The following facts and
circumstances established during preliminary investigation were sufficient basis to
incite reasonable belief in respondents guilt: (a) Motive - respondent had credible
reason to have Engr. Tria killed because of the impending criminal prosecution
for estafa from her double sale of his lot prior to his death, judging from the strong
interest of Engr. Trias family to run after said property and/or proceeds of the
second sale to a third party; (b) Access - respondent was close to Engr. Trias family
and familiar with his work schedule, daily routine and other transactions which
could facilitate in the commission of the crime eventually carried out by a hired
gunmen, one of whom (Aclan) she and her father categorically admitted being in
her company while she visited Engr. Tria hours before the latter was fatally shot at
the airport; (c) Suspicious Behavior -- respondent while declaring such close
personal relationship with Engr. Tria and even his family, failed to give any
satisfactory explanation why she reacted indifferently to the violent killing of her
friend while they conversed and shook hands at the airport. Indeed, a relative or a
friend would not just stand by and walk away from the place as if nothing
happened, as what she did, nor refuse to volunteer information that would help the
authorities investigating the crime, considering that she is a vital eyewitness. Not
even a call for help to the people to bring her friend quickly to the hospital. She
would not even dare go near Engr. Trias body to check if the latter was still alive.
 All the foregoing circumstances, in our mind, and from the point of view of
an ordinary person, lead to a reasonable inference of respondents probable
participation in the well-planned assassination of Engr. Tria. We therefore hold
that the OP in reversing the DOJ Secretarys ruling, and the CA in affirming the
same, both committed grave abuse of discretion. Clearly, the OP and CA arbitrarily
disregarded facts on record which established probable cause against the
respondent.

WHEREFORE, premises considered, the petition is

hereby GRANTED. The Decision dated August 14, 2006 and Resolution
dated December 11, 2006 of the Court of Appeals in CA-G.R. SP No. 86210
are REVERSED and SET ASIDE. The January 25, 2000 Resolution of then
Justice Secretary Serafin Cuevas modifying the July 2, 1999 resolution of the
Provincial Prosecutor of Camarines Sur and directing the latter to include
respondent in the information for murder filed against Aclan and Ona is
hereby REINSTATED and UPHELD.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson
 ARTURO D. BRION LUCAS P. BERSAMIN
Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice
RULE 112: VALENCIA

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-39864 December 8, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MARCELINO VALENCIA, MELCHOR QUIJANO, and SOCORRO QUIJANO, defendants.
MARCELINO VALENCIA and SOCORRO QUIJANO, appellants.

B. Francisco for appellants.

Office of the Solicitor-General Hilado for appellee.

ABAD SANTOS, J.:

Appellants Marcelino Valencia and Socorro Quijano, together with Melchor Quijano, were
prosecuted in the Court of First Instance of Pampanga under the following information:

Que en a hacia el dia 21 de marzo de 1933, en el Municipio de Mabalacat, Provincia de

Pampanga, Islas Filipinas, los referidos acusados, Marcelino Valencia, Melchor Quijano y
Socorro Quijano, confabulandose entre si, de comun acuerdo, ayudandose mutuamente y
en connivencia con los fabricantes de billetes de banco falsos, quienes hasta ahora no han
sido identificados, voluntaria, ilegal y criminalmente, expendieron e hicieron pasar un billete
de banco falsificado a sabiendas de que lo era, en la forma y manera siguinte: se
presentaron en la tienda de la Sra. Maria Morales y compraron efectos de su tienda, cuyo
valor es de P0.45 y para pagarlos entregaron un billete de banco falsificado P10, No.
D261487D del Banco de las Islas Filipinas, haciendolo pasar como legitimo y expedido por
el Banco de las Islas Filipinas, cuando que a ellos les constaba y les consta positivamente
de que era y es falsificado recibiendo de la citada Sra. Maria Morales como cambio la
cantidad de P9.55. lawphil.net

Upon arraignment, Marcelino Valencia pleaded guilty, while his two codefendants pleaded not guilty.
After due trial, Melchor Quijano was acquitted. Marcelino Valencia was found guilty of a violation of
article 166, of the Revised Penal Code, and sentenced to suffer ten years, eight months and one day
of prision mayor, with the accessories of the law, to pay a fine of P100, with subsidiary imprisonment
in case of insolvency, and to pay one-third of the costs. Socorro Quijano was found guilty of a
violation of article 168 of the Revised Penal Code, and sentenced to four years, two months and one
day of prision correccional, with the accessories of the law, and to pay one-third of the costs.

The evidence shows that on the morning of March 21, 1933, appellants stopped their car in front of a
store belonging to Maria Morales and bought some cigarettes and corn beef, and gave the seller a
ten-peso bill. After receiving the change in the sum of P9.55, they hurriedly left the store. This
aroused the suspicion of the store owner who, upon examining the bill, found it to be a counterfeit.
Whereupon her brother Pedro Morales went in pursuit of appellants. Meanwhile, appellants went to
another store belonging to Eustaquia Suñga and bought cigars and some cans of salmon, giving, in
payment, another ten-peso counterfeit bill. Upon receiving the change, they again hurriedly
departed. They were, however, overtaken by Pedro Morales and, at his instance, were detained by
the authorities.

On this appeal, two questions are raised, one relates to the qualification of the crime committed by
Marcelino, while the other, to the sufficiency of evidence to sustain the conviction of Socorro.

As to the first question, counsel contends that article 168 of the Revised Penal Code should be
applied, instead of article 166, alleging that no evidence was presented that appellant Marcelino was
in connivance with the counterfeiters or forgers when he passed the counterfeit bills. This contention
is groundless, since, by his plea of guilty, Marcelino admitted all the material allegations of the
information, including that of connivance with the authors of the forgery, which characterizes the
crime defined by article 166 of the Revised Penal Code. (U.S. vs. Burlado, 42 Phil., 72,74; U.S. vs.
Barba, 29 Phil., 206; U.S. vs. Tamarra, 21 Phil., 143.) His testimony at the trial of, and as witness
for, his co-appellant, could not affect the legal consequences of his plea.

As to the second question, counsel contends that Socorro did not know anything about the
counterfeit bills, but an examination of the evidence in this case convinces us to the contrary, and so
we are not disposed to interfere with the finding of the trial court on this point.

The crime committed by Marcelino Valencia falls within the purview of article 166, case 2, of the
Revised Penal Code. The penalty prescribed is prision mayor in its maximum degree and a fine not
to exceed P5,000. There being present the mitigating circumstance of plea of guilty, without any
aggravating circumstance to offset it, the penalty should be imposed in its minimum period. Under
the provisions of Act No. 4103 of the Philippine Legislature, otherwise known as the Indeterminate
Sentence Law, he should be sentenced to a term of imprisonment the minimum of which shall not be
less than the minimum of the penalty next lower in degree to that prescribed by the Revised Penal
Code, and the maximum shall be that which may be properly imposed, in view of the attending
circumstances. Consequently, the appellant Marcelino Valencia is hereby sentenced to suffer a term
of imprisonment of from eight years and one day to ten years and eight months. The fine imposed by
the lower court should be without any subsidiary imprisonment pursuant to article 39, rule 3, of the
Revised Penal Code.

The crime committed by Socorro Quijano falls under article 168 of the Revised Penal Code, and the
penalty prescribed is prision mayor in its medium degree, which should be applied in its medium
period, in the absence of any mitigating or aggravating circumstance in the commission of the crime.
Pursuant to the provisions of said Act No. 4103, she is hereby sentenced to suffer a term of
imprisonment of from six years and one day to nine years and four months. She is also sentenced to
pay a fine of P100, without any subsidiary imprisonment. (Article 168, in relation with article 166,
case 2, and article 39, rule 3, of the Revised Penal Code.)

Modified as above indicated, the judgment is affirmed with costs against the appellants. So ordered.

Street, Vickers, Butte, and Diaz, JJ., concur.

RULE 112: NAVARRO - GUTIERREZ

FIRST DIVISION

G.R. No. 194159, October 21, 2015

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, Petitioner, v. MA. MERCEDITAS NAVARRO-

GUTIERREZ (AS THEN OMBUDSMAN), DON M. FERRY, JOSE R. TENGCO, JR., ROLANDO M. ZOSA,
CESAR C. ZALAMEA, OFELIA I. CASTELL, AND RAFAEL A. SISON, PUBLIC RESPONDENTS,
RODOLFO M. CUENCA, MANUEL I. TINIO, AND ANTONIO R. ROQUE, PRIVATE, Respondents.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for certiorari1 assailing the Resolution2 dated May 30, 2007 and the
Order3dated April 13, 2009 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-03-0500-I, which
dismissed the affidavit-complaint4 of petitioner Presidential Commission on Good Government (PCGG)
charging individual respondents Don M. Ferry (Ferry), Jose R. Tengco, Jr. (Tengco), Rolando M. Zosa (Zosa),
Cesar C. Zalamea (Zalamea), Ofelia I. Castell (Castell), Rafael A. Sison (Sison), Rodolfo M. Cuenca
(Cuenca), Manuel I. Tinio (Tinio), and Antonio R. Roque (Roque) for allegedly violating Sections 3 (e) and
(g) of Republic Act No. (RA) 3019,5 for lack of probable cause.

The Facts

The instant case arose from an Affidavit-Complaint6 dated July 15, 2003 filed by the PCGG - through Rene B.
Gorospe, the Legal Consultant in-charge of reviewing behest loan cases - against former officers/directors of
the Development Bank of the Philippines (DBP), namely, Ferry, Tengco, Zosa, Zalamea, Castell, and Sison,
as well as former officers/stockholders of National Galleon Shipping Corporation (Galleon),7 namely, Cuenca,
Tinio, and Roque charging them of violating Sections 3 (e) and (g) of RA 3019. In the Affidavit-Complaint,
the PCGG alleged that on October 8, 1992, then President Fidel V. Ramos (President Ramos) issued
Administrative Order No. 13,8 creating the Presidential Ad HocFact-Finding Committee on Behest Loans (Ad
Hoc Committee) in order to identify various anomalous behest loans entered into by the Philippine
Government in the past. Later on, President Ramos issued Memorandum Order No. 619 on November 9,
1992, laying down the criteria which the Ad Hoc Committee may use as a frame of reference in determining
whether or not a loan is behest in nature. Thereafter, the Ad Hoc Committee, with the assistance of a
Technical Working Group (TWG) consisting of officers and employees of different government financial
institutions (GFIs), examined and studied documents relative to loan accounts extended by GFIs to various
corporations during the regime of the late President Ferdinand E. Marcos (President Marcos) -one of which is
the loan account granted by the DBP to Galleon.10

After examining the aforesaid loan account, the TWG found, inter alia, that: (a) on September 19, 1979,
DBP, pursuant to its Board Resolution No. 3002,11 approved guarantees in favor of Galleon in the aggregate
amount of US$90,280,000.00 for the purpose of securing foreign currency borrowings from financial
institutions related to Galleon's acquisition of five (5) brand new and two (2) secondhand vessels;12 (b)
Board Resolution No. 3002 specifically stated that such accommodation "shall be undertaken at the behest
of the Philippine Government;"13 (c) as a condition for the grant of the guarantees, Board Resolution No.
3002 required Galleon to raise its paid up capital to P98.963 Million by 1981,14 but Galleon was only able to
raise its capital to P46,740.755.00;15 (d) despite Galleon's failure to comply with such condition, DBP still
granted the guarantees; (e) as of June 30, 1981, Galleon's arrearages had already amounted to
P40,684,059.37, while the aggregate DBP obligations of Galleon already totaled P691,058,027.92;16 (f)
despite the outstanding debts, DBP still issued Board Resolution Nos. 400817 and 3001,18 approving further
accommodations in Galleon's favor in the form of one-year foreign currency loans to refinance the latter's
arrearages, which amounted to P58,101,718.89 as of September 30, 1982;19(g) despite Galleon's
arrearages amounting to P128,182,654.38 and obligations accumulating to P904,277,536.96, DBP still
approved the release of Galleon's two (2) secondhand vessels as collaterals resulting in collateral
deficiency;20 and (h) as of March 31, 1984, Galleon's total obligations to DBP amounted to
P2,039,284,390.85, while the value of its collaterals was only P539,000,000.00.21 These findings were then
collated in an Executive Summary22 which was submitted to the Ad Hoc Committee.

Based on the foregoing, the Ad Hoc Committee concluded that the loans/accommodations obtained by
Galleon from DBP possessed positive characteristics of behest loans, considering that: (a) Galleon was
undercapitalized; (b) the loan itself was undercoUateralized; (c) the major stockholders of Galleon were
known to be cronies of President Marcos; and id) certain documents pertaining to the loan account were
found to bear "marginal notes" of President Marcos himself.23 Resultantly, the PCGG filed the instant criminal
complaint against individual respondents, docketed as OMB-C-C-03-0500-I.

Except for Roque, Zalamea, Tengco, and Castell, the other individual respondents impleaded in the affidavit-
complaint did not file their respective counter-affidavits despite due notice.24

In his defense,25 Roque denied being a Marcos crony, and averred that he was only a minor shareholder of
Galleon and that he was in no position to influence the DBP in extending the subject loan to Galleon.26For his
part,27 Zalamea maintained that he had no participation or hand in the subject loan transactions as he
joined the DBP as Chairman only in 1982, while the execution of the transactions pertaining to such loan
was done in 1979-1981, and that the criminal charges against them are barred by prescription since it had
been more than 20 years before the complaint against them was filed on July 15, 2003.28Similarly, Tengco
also argued29 that the criminal charges against them had already prescribed. He also contended that his
participation in the approval of the subject loan was at the board level only and was done in the exercise of
his sound business judgment through the collective act of the DBP Board of Directors.30 Finally, Castell
pleaded31 that her role in the handling of the projects and transactions of Galleon involved only the
supervision of employees, but with no approving authority for matters like those involving the transactions
pertaining to the subject loan obtained by Galleon from DBP.32

The Ombudsman Ruling

In a Resolution33 dated May 30, 2007, the Ombudsman found no probable cause against private respondents
and, accordingly, dismissed the criminal complaint against them.34 It found that the pieces of evidence
attached to the case records were not sufficient to establish probable cause against the individual
respondents, considering that the documents presented by the PCGG consisted mostly of executive
summaries and technical reports, which are hearsay, self-serving, and of little probative value.35 In this
relation, the Ombudsman noted that the PCGG failed to present "the documents which would directly
establish the alleged illegal transactions like, the Loan Agreement between DBP and [Galleon], the approved
Board Resolutions by the DBP officers/board of directors, the participation/voting that transpired at the
board meetings wherein the alleged behest loans were granted."36

Aggrieved, the PCGG moved for reconsideration,37 which was, however, denied in an Order38 dated April 13,
2009; hence, this petition.39

The Issue Before the Court

The issue raised for the Court's resolution is whether or not the OMB gravely abused its discretion in finding
no probable cause to indict respondents of violating Sections 3 (e) and (g) of RA 3019. chanro bleslaw

The Court's Ruling

The petition is meritorious.

At the outset, it must be stressed that the Court has consistently refrained from interfering with the
discretion of the Ombudsman to determine the existence of probable cause and to decide whether or not an
Information should be filed. Nonetheless, the Court is not precluded from reviewing the Ombudsman's action
when there is a charge of grave abuse of discretion. Grave abuse of discretion implies a capricious and
whimsical exercise of judgment tantamount to lack of jurisdiction.40 The Ombudsman's exercise of power
must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.41 The Court's pronouncement in Ciron v. Gutierrez42 is instructive on this matter, to
wit:

xxx this Court's consistent policy has been to maintain non�interference in the determination of
the Ombudsman of the existence of probable cause, provided there is no grave abuse in the
exercise of such discretion. This observed policy is based not only on respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well.Otherwise, the functions of the Court will be seriously
hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts
would be extremely swamped with cases if they could be compelled to review the exercise of discretion on
the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or
dismiss a complaint by a private complainant.43]�(Emphasis and underscoring in the original)

In this regard, it is worthy to note that the conduct of preliminary investigation proceedings - whether by
the Ombudsman or by a public prosecutor - is geared only to determine whether or not probable cause
exists to hold an accused-respondent for trial for the supposed crime that he committed. In Fenequito v.
Vergara, Jr.,44 the Court defined probable cause and the parameters in finding the existence thereof in the
following manner, to wit:

Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof. The term does not mean "actual or positive cause" nor does it
import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not
require an inquiry whether there is sufficient evidence to procure a conviction. It is enough that
it is believed that the act or omission complained of constitutes the offense charged.

A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has
been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not
on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not require an inquiry as to whether
there is sufficient evidence to secure a conviction.45 (Emphases and underscoring supplied)

Verily, preliminary investigation is merely an inquisitorial mode of discovering whether or not there is
reasonable basis to believe that a crime has been committed and that the person charged should be held
responsible for it. Being merely based on opinion and belief, a finding of probable cause does not require an
inquiry as to whether there is sufficient evidence to secure a conviction.46 "[A preliminary investigation] is
not the occasion for the full and exhaustive display of [the prosecution's] evidence. The presence and
absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed
upon after a full-blown trial on the merits."47 Hence, "the validity and merits of a party's defense or
accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper
than at the preliminary investigation level."48

Guided by the foregoing considerations, the Court finds that the Ombudsman gravely abused its discretion in
dismissing the criminal complaint against individual respondents for lack of probable cause, as will be
explained hereunder.

As already stated, individual respondents were accused of violating Section 3 (e) of RA 3019, the elements
of which are as follows: (a) that the accused must be a public officer discharging administrative, judicial, or
official functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with
manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue
injury to any party, including the government, or giving any private party unwarranted benefits, advantage,
or preference in the discharge of his functions.49 In the same vein, they were likewise charged with violation
of Section 3 (g) of the same law, which has the following elements: (a) that the accused is a public officer;
(b) that he entered into a contract or transaction on behalf of the government; and (c) that such contract or
transaction is grossly and manifestly disadvantageous to the government.50 Notably, private individuals may
also be charged with violation of Section 3 (g) of RA 3019 if they conspired with public officers.51
A review of the records of the case reveals that Galleon made a request for guarantees from DBP to cover
its foreign borrowings for the purpose of acquiring new and secondhand vessels. In an evaluation
memorandum52 dated August 27, 1979, the DBP itself already raised various red flags regarding Galleon's
request, such as the following: (a) its guarantee accommodation request covers 100% of its project cost,
which is in excess of DBP's normal practice of financing only 80% of such cost; (b) its net profit margin was
experiencing a steady decrease due to high operating costs; (c) its paid-up capital is only P9.95 Million; and
(d) aside from its proposal to source the increase in equity from the expected profits from the operations of
the vessels to be acquired, Galleon has not shown any concrete proof on how it will be funding its equity
build-up.53 Despite the foregoing, DBP still agreed to grant Galleon's request under certain conditions (e.g.,
increase in paid-up capital, placement of adequate collaterals), which were eventually not complied with.
Further, when Galleon's arrearages and obligations skyrocketed due to its failure to service its debts, DBP,
instead of securing its interest by demanding immediate payment or the foreclosure of the collaterals,
granted Galleon further accommodations in the form of foreign currency loans and release of certain
collaterals. As a result of the foregoing, among other things, Galleon's total obligations to DBP ballooned all
the way to P2,039,284,390.85, while the collaterals securing such obligations were only valued at
P539,000,000.00 as of March 31, 1984.54 Further, Galleon's paid-up capital remained only at
P46,740,755.00 as of June 30, 1981.55

In light of the foregoing considerations, the Ad Hoc Committee concluded that the accommodations
extended by DBP to Galleon were in the nature of behest loans, which then led to the filing of criminal cases
against individual respondents, who were high-ranking officers and/or directors of either Galleon or DBP, as
evidenced by the various documents on record. Specifically, Cuenca, Tinio, and Roque were Galleon
stockholders and were its President, Executive Vice-President and Treasurer, and Corporate Secretary,
respectively.56 On the other hand, the following individual respondents exercised official functions for the
DBP during the time it extended Galleon the aforesaid accommodations: (a) Ferry as DBP Vice Chairman and
Acting Chairman;57 (b) Tengco as DBP Board Member, Supervising Governor, and Acting Chairman;58 (c)
Zosa as DBP Supervising Governor and Chairman of the Loan Committee;59 (d) Zalamea as DBP
Chairman;60 (e) Castell as DBP Executive Officer and Manager of the Industrial Projects Development
III;61 and if) Sison as DBP Board Member and Acting Chairman.62 As may be gleaned from the documents on
record, it appears that each of these high-ranking officers and/or directors of DBP had a hand in
recommending the approval and/or the actual approval of the series of accommodations that DBP granted in
favor of Galleon, which constituted the behest loans received by the latter during the regime of the late
President Marcos.

In view of the accusations that they were involved in the grant of behest loans, Roque, Zalamea, Tengco,
and Castell merely denied liability by maintaining that they had no participation in such grant. Suffice it to
say that these are matters of defense that are better ventilated during the trial proper. On the other hand,
Ferry, Zosa, Cuenca, Tinio, and Sison miserably failed to debunk the charges against them by not filing their
respective counter-affidavits despite due notice. Indubitably, the foregoing establishes probable cause to
believe that individual respondents may have indeed committed acts constituting the crimes charged against
them, and as such they must defend themselves in a full-blown trial on the merits.

Finally, it was error for the Ombudsman to simply discredit the TWG's findings contained in the Executive
Summary which were adopted by the Ad Hoc Committee for being hearsay, self-serving, and of little
probative value. It is noteworthy to point out that owing to the initiatory nature of preliminary
investigations, the technical rules of evidence should not be applied in the course of its proceedings.63 In the
recent case of Estrada v. Ombudsman,64 the Court declared that hearsay evidence is admissible in
determining probable cause in preliminary investigations because such investigation is merely preliminary,
and does not finally adjudicate rights and obligations of parties. Citing a case decided by the Supreme Court
of the United States, it was held that probable cause can be established with hearsay evidence, as long as
there is substantial basis for crediting the hearsay, viz.:

Justice Brion's pronouncement in Unilever that "the determination of probable cause does not depend on the
validity or merits of a party's accusation or defense or on the admissibility or veracity of testimonies
presented" correctly recognizes the doctrine in the United States that the determination of probable
cause can rest partially, or even entirely, on hearsay evidence, as long as the person making the
hearsay statement is credible. In United States v. Ventresca, the United States Supreme Court held: chanRoblesv irtual Lawlib rary

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the term
'probable cause' . . . means less than evidence which would justify condemnation," x x x and that a finding
of "probable cause" may rest upon evidence which is not legally competent in a criminal trial, x x x As the
Court stated in Brinegar v. United States x x x, "There is a large difference between two things to be proved
(guilt and probable cause), as well as between the tribunals which determine them, and therefore a like
difference in the quanta and modes of proof required to establish them." Thus, hearsay may be the bases
for issuance of the warrant "so long as there ... [is] a substantial basis for crediting the hearsay."
x x x And, in Aguilar, we recognized that "an affidavit may be based on hearsay information and need
not reflect the direct personal observations of the affiant," so long as the magistrate is "informed
of some of the underlying circumstances" supporting the affiant's conclusions and his belief that
any informant involved "whose identity need not be disclosed..." was "credible" or his
information "reliable." x x x.
Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in
a preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties, x x x.65 (Emphases and underscoring supplied)

In this case, assuming arguendo that the factual findings contained in the Executive Summary prepared by
the TWG from which the Ad Hoc Committee based its conclusions are indeed hearsay, self-serving, and of
little probative value, there is nevertheless substantial basis to credit the same, as such factual findings
appear to be based on official documents prepared by DBP itself in connection with the behest loans it
allegedly extended in favor of Galleon. In this regard, it must be emphasized that in determining the
elements of the crime charged for purposes of arriving at a finding of probable cause, only facts sufficient to
support a prima facie case against the respondents are required, not absolute certainty. Probable cause
implies mere probability of guilt, i.e., a finding based on more than bare suspicion, but less than evidence
that would justify a conviction.66 To reiterate, the validity of the merits of a party's defense or accusations
and the admissibility of testimonies and evidences are better ventilated during the trial stage than in the
preliminary stage.67

In sum, the Court is convinced that there is probable cause to indict individual respondents of violating
Sections 3 (e) and (g) of RA 3019. Hence, the Ombudsman committed grave abuse of discretion amounting
to lack or excess of jurisdiction in dismissing the criminal complaint against them.

WHEREFORE, the petition is GRANTED. The Resolution dated May 30, 2007 and the Order dated April 13,
2009 of the Office of the Ombudsman in OMB-C-C-03-0500-I are hereby REVERSED and SET ASIDE.
Accordingly, the Office of the Ombudsman is DIRECTED to issue the proper resolution indicting individual
respondents Don M. Ferry, Jose R. Tengco, Jr., Rolando ML Zosa, Cesar C. Zalamea, Ofelia I. Castell, Rafael
A. Sison, Rodolfo M. Cuenca, Manuel I. Tinio, and Antonio R. Roque of violating Sections 3 (e) and (g) of
Republic Act No. 3019, in accordance with this Decision.

SO ORDERED. chanroblesvi rtua llawli bra ry

Sereno, C.J., (Chairperson), Velasco, Jr.,* Leonardo-De Castro, and Bersamin, JJ., concur.