the manabat doctrine

PEOPLE V. MARIO MANABAT, G.R. NO. 242947, Second Division, 17 July 2019

In order to convict a person charged with the crime of illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution is required to prove the following elements: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.

            On the other hand, illegal possession of dangerous drugs under Section 11, Article II of RA 9165 has the following elements: (1) the accused is in possession of an item or object, which is identified to be a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the drug.

            In cases involving dangerous drugs, the State bears not only the burden of proving these elements, but also proving the corpus delicti or the body of the crime. In drug cases, the dangerous drug itself is the very corpus delicti of the violation of the law. While it is true that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers and distributors, the law nevertheless also requires strict compliance with procedures laid down by it to ensure that rights are safeguarded.

           

            In this connection, Section 21, Article II of RA 9165, the applicable law at the time of the commission of the alleged crimes, lays down the procedure that police operatives must follow to maintain the integrity of the confiscated drugs used as evidence. The provision requires that: (1) the seized items be inventoried and photographed immediately after seizure or confiscation; and (2) the physical inventory and photographing must be done in the presence of (a) the accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the Department of Justice (DOJ), all of whom shall be required to sign the copies of the inventory and be given a copy therefor.

            This must be so because with the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great.

            Section 21 of RA 9165 further requires the apprehending team to conduct a physical inventory of the seized items and the photographing of the same immediately after seizure and confiscation. The said inventory must be done in the presence of the aforementioned required witness, all of whom shall be required to sign the copies of the inventory and be given a copy thereof. The phrase “immediately after seizure and confiscation” means that the physical inventory and photographing of the drugs were intended by the law to be made immediately after, or at the place of apprehension. It is only when the same is not practicable that the Implementing Rules and Regulations (IRR) of RA 9165 allow the inventory and photographing to be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. In this connection, this also means that the three required witness should already be physically present at the time of apprehension – a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity. Verily, a buy-bust team normally has enough time to gather and bring with it the said witness.

            As held fairly recent of People v. Tomawis, the Court explained that the presence of the three witnesses must be secured not only during the inventory but more importantly at the time of the warrantless arrest. It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug, viz.:

                        The presence of the witness from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in People v. Mendoza, without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, “planting” or contamination of the evidence that had tainted the buy-busts conducted under regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.

                        The presence of the three witnesses must be secured not only during the inventory bbut more importantly at the time of the warrantless arrest. It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frame-up as the witnesses would be able testify the buy-bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21 of RA 9165.

                        The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so – and “calling them in” to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished – does not achieve the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.

                        To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest; such that they required to be at or near the intended place of the arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs “immediately after seizure and confiscation”. (Emphasis in the original)

            Based from the foregoing, the Court holds that the buy-bust operation was not conducted in accordance with the law.

            First, it is not disputed whatsoever that the witnesses were called and eventually arrived at the scene of the crime only after the accused-appellant was already apprehended by PO2 Barral. On cross-examination, PO2 Barral readily admitted that during the apprehension of accused-appellant Manabat, the witness were not present:

            Q         You mean to say that during the arrest, the witnesses did not arrive yet?

            A         Not yet, sir.

            Further, as testified by SP02 Vertudes, the buy-bust team did not contact the witnesses at all before the team arrived at the place of the buy-bust operation. The witnesses were conducted only after accused-appellant Manabat was already arrested and handcuffed:

            Q         Before you proceeded to ABC Printing Press you did not yet contact the

            witnesses from the DOJ, the media and from the elected officials of the

            barangay right?

A         Not yet, sir.

Q         Only after Mario was arrested and handcuffed that you did not contact those witnesses, correct?

A         Yes, sir.

            In fact, the Court notes that the prosecution offered conflicting testimonies as regards the time of arrival of the witnesses.

            According to PO2 Barral, the witnesses arrived: [m]ore or less ten minutes” after they were called. To the contrary, when SPO2 Vertudes was asked to when the witness arrived, he first answered “three to five minutes sir.” But when pressed as to the veracity of his answer, considering that the buy-bust was conducted on a Sunday, SPO2 Vertudes eventually admitted that the arrival of the wtitnesses was completed “[f]ifteen to thirty minutes.”

            Further creating doubt as to the presence of the witnesses during the buy-bust operation is the admission of PO2 Barral on cross-examination that the photographs of the inventory do not show the presence of the witnesses, except for Councilor Epifanio Woo:

                Q             The witnesses are not shown in these pictures during the search, right?

               

                A             No, sir.

                Q             All these pictures are taken close up?

                A             Yes, sir.

                Q             No witnesses are shown in this picture, right?

                A             None, sir.

                x xxx

Q             In the pictures marked as Exhibits “X-9” and “X-16”, there is a person with fatigue short pants?

A             Yes, sir.

Q             You know who is this person?

A             Yes, sir. Councilor Epifanio Woo. He is also shown here.

If the witnesses were indeed present during the entire photographing and inventory of the evidence, obviously, it would have been easy and effortless on the part of the buy-bust team to take photographs of the other witnesses. Yet, this was not done, creating some doubt in the mind of the Court as to the presence of the required witnesses during the buy-bust operation.

The apprehending team cannot justify its failure to ensure the availability of the witnesses during the apprehension of accused-appellant Manabat, considering that the buy-bust operation was conducted seven days after the day it received information about accused-appellant and was instructed to conduct the buy-bust operation. Simply stated, the apprehending team had more than enough time to ensure that all the mandatory procedures for the conduct of the buy-bust operation would be sufficiently met.

Second, the Certificate of Inventory that was produce by the prosecution was irregularly executed.

To reiterate, Section 21 of RA 9165 requires that the copies of the inventory should be signed by all the following persons: (a) accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the Department of Justice (DOJ).

The Certificate of Inventory itself reveals that the document was not signed by accused-appellant Manabat or by his counsel or representative. Upon perusal of the records of the instant case, the prosecution did not acknowledge such defect. Nor did the prosecution provide any explanation whatsoever as to why accused-appellant Manabat was not able to sign the Certificate of Inventory.

Concededly, Section 21 of the IRR of RA 9165 provides that “noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.” For this provision to be effective, however, the prosecution must first (1) recognize any lapse on the part of the police officers and (2) be able to justify the same. In this case, the prosecution neither recognized, much less tried to justify, the police officers’ deviation from the procedure contained in Section 21, RA 9165.

Third, the Court notes that the marking of the plastic sachets allegedly recovered was irregularly done.

Under the 1999 Philippine National Police Drug Enforcement Manual, the conduct of buy-bust operations requires the following:

Anti-Drug Operational Procedures

Chapter V. Specific Rules

x xxx

                                B. Conduct of Operation: (As far as practicable, all operations must be officer led)

1.       Buy-bust Operation – [I]n the conduct of buy-bust operation, the following are the procedures to be observed:

a.       Record time of jump-off in unit’s logbook;

b.       Alertness and security shall at all times to be observed:

c.       Actual and timely coordination with the nearest Philippine National Police territorial units must be made;

d.       Area security and dragnet or pursuit operation must be provided [;]

e.       Use of necessary and reasonable force only in case of suspect’s resistance [;]

f.        If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the powder before giving the pre-arranged signal and arresting the suspects;

g.       In pre-positioning of the team members, the designated arresting elements must clearly and actually observe the negotiation/transaction between suspect and the poseur-buyer;

h.       Arrest suspect in a defensive manner anticipating possible resistance with the use of deadly weapons which maybe concealed in his body, vehicle or in a place within arms’ reach;

i.         After lawful arrest, search the body and vehicle, if any, of the suspect for other concealed evidence oededly weapon;

j.         Appraise suspect of his constitutional rights loudly and clearly after having been secured with handcuffs;

k.       Take actual inventory of the seized evidence by means of weighing and/or physical counting, as the case may be;

l.         Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;

m.     The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was confiscated/seized;

n.       Take photographs of the evidence while in the process of taking the inventory, especially during the weighing, and if possible under existing conditions, the registered weight of the evidence on the scale must be focused by the camera; and

o.       Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver the same to the Philippine National Police CLG for laboratory examination.

In the instant case, as incontrovertibly revealed by the photographs of the plastic sachets

Allegedly retrieved from accused-appellant Manabat, only the date and initials of the seizing officers were inscribed on the specimens. The time and place of the buy-bust operation were not indicated in the markings, in clear contravention of the PNP’s own set of procedures for the conduct of buy-bust operations.

                At this juncture, it is well to point-out that while the RTC and CA were correct in stating that denial is an inherently weak defense, it grievously erred in using the same principle to convict accused-appellant Manabat. Both the RTC and CA overlooked the long-standing legal tenet that the starting point of every criminal prosecution is that the accused has the constitutional right to be presumed innocent. And this presumption of innocence is overturned only when the prosecution has discharged its burden of proof in criminal cases and has proven the guilt of the accused beyond reasonable doubt, by proving each and every element of the crime charged in the information, to warrant a finding of guilt for that crime or for any other crime necessarily included therein. Differently stated, there must exist no reasonable doubt as to the existence of each and every element of the crime to sustain a conviction.

                It is worth emphasizing that this burden of proof never shifts. Indeed, the accused need not present a single piece of evidence in his defense if the State has not discharged its onus. The accused can simply rely on his right to be presumed innocent.

                In this connection, the prosecution therefore, in cases involving dangerous drugs, always has the burden of proving compliance with the procedure outlined in Section 21. As the Court stressed in People v. Andaya.

x xx We Should remind ourselves that we cannot presume that the accused committed the crimes they have been charged with. The State must fully establish that for us. If the imputation of ill motive to the lawmen is the only means of impeaching them, then that would be the end of our dutiful vigilance to protect our citizenry from false arrests and wrongful incriminations. We are aware that there have been in the past many cases of false arrests and wrongful incriminations, and that should heighten our resolve to strengthen the ramparts of judicial scrutiny.

Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the lawmen are shielded by the presumption of the regularity of their performance of duty. The presumed regularity is nothing but a purely evidentiary tool intended to avoid the impossible and time-consuming task of establishing every detail of the performance by officials and functionaries of the Government. Conversion by no means defeat the much stronger and much firmer presumption of innocence in favour of every person whose life, property and liberty comes under the risk of forfeiture on the strength of a false accusation of committing some crime. (Emphasis and underscoring supplied)

                To stress, the accused can rely on his right to be presumed innocent. It is thus immaterial, in this case or in any other cases involving dangerous drugs, that the accused put forth a weak defense.

                To reiterate, breaches of the procedure outlined in Section 21 committed by the police officers, left unacknowledged and unexplained by the State, militate against a finding of guilt beyond reasonable doubt against the accused as the integrity and evidentiary value of the corpus delicti would have been compromised. As the Court explained in People v. Reyes:

Under the last paragraph of Section 21 (a), Article II of the IRR of R.A. No. 9165, a saving mechanism has been provided to ensure that not every case of non-compliance with the procedures for the preservation of the chain accused. To warrant the application of this saving mechanism, however, the Prosecution must recognize the lapse or lapses, and justify or explain them. Such justification or explanation would be the basis for applying the saving mechanism. Yet, the Prosecution did not concede such lapses, and did not even tender any token justification or explaination for them. The failure to justify or explain underscored the doubt and suspicion about the iintegrity of the evidence of the corpus delicti. With the chain of custody having been compromised, the accused deserves acquittal.

Lastly, it was an error for the RTC to convict accused-appellant Manabat by relying on the presumption of regularity in the performance of duties supposedly extended in favour of the police officers. The presumption of regularity in the performance of duty cannot overcome the stronger presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be presumed innocent. As the Court, in People v. Catalan, reminded the lower courts:

Both lower courts favoured the members of the buy-bust team with the presumption of regularity in the performance of their duty, mainly because the accused did not show that they had ill motive behind his entrapment.

We hold that both lower courts committed gross error in relying on the presumption of regularity.

Presuming that the members of the buy-bust team regularly performed their duty was patently bereft of any factual and legal basis. We remind the lower courts that the presumption of regularity in the performance of duty could not prevail over the stronger presumption of innocence favouring the accused. Otherwise, the constitutional guarantee of the accused being presumed innocent would be held subordinate to a mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduces against the accused has not even overcome the presumption of innocence, the presumption regularity in the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.

Moreover, the regularity of the performance of their duty could not be properly presumed in favor of the policemen because the records were replete with indicia of their serious lapses. As a rule, a presumed fact like the regularity of performance by a police officer must be inferred only from an established basic fact, not plucked out from thin air. To say it differently, it is the established basic fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity committed by the police officers in arresting the accused and thereafter, several of which we have earlier noted, there can be no presumption of regularity of performance in their favor. (Emphasis supplied)

                In this case, the presumption of regularity cannot stand-because of the buy-bust team’s disregard of the established procedures under Section 21 of RA 9165 and the PNP’s own Drug Enforcement Manual.

                In sum, the prosecution failed to provide justifiable grounds for the apprehending team’s deviation from the rules laid down in Section 21 of RA 9165. The integrity and evidentiary value of the corpus delicti have thus been compromised. In light of this, accused-appellant Manabat must perforce be acquitted.

                WHEREFORE, in view of the foregoing, the appeal is hereby GRANTED. The Decision dated August 2, 2018 of the Court of Appeals in CA-G.R. CR-H.C. No. 01781-MIN is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant MARIO MANABAT y DUMAGAY is ACQUITTED of the crimes charged on the ground of reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention unless he is being lawfully held for another case. Let an entry of final judgment be issued immediately.

                Let a copy of this Decision be furnished the Superintendent of the Ramon Prison and Penal Farm, Zamboanga City, for immediate implementation. The said Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the action he has taken.

FINAL EXAMINATION AND ANSWERS

1.The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was picked up by several unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a number to the complainants, and when the latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in exchange for the release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities. While at the NBI-CEVRO, Charito even received calls supposedly from "James" instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the complainants. A team was immediately formed to implement an entrapment operation, which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part of the amount demanded by "James" and handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.

The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was required to extract urine for drug examination, but he refused saying he wanted it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied. He also requested to be allowed to call his lawyer prior to the taking of his urine sample, to no avail.

QUESTION: Accused claims that the extraction of urine sample from him which yielded a positive result for shabu violated his right against self-incrimination. Rule on the issue with reasons.

 answer: His  right against self-incrimination was violated for the main reason that the charge of extortion has nothing to do with the required urine test. If his urine is extracted, it would be tantamount for him giving evidence for another crime for which he is not charged yet.

Read: JAIME D. DELA CRUZ, Petitioner vs. PEOPLE OF THE PHILIPPINES,Respondent.FIRST DIVISION G.R. No. 200748 ,July 23, 2014

The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])

In the instant case, we fail to see how a urine sample could be material to the charge of extortion.1âwphi

1 The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation."

2. In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:

x x x x

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

x x x x

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

QUESTION: Decide whether said provision of law is constitutional or not. Explain your answer.

ANSWER: refer to: 

EN BANC

G.R. No. 157870             November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.

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

G.R. No. 158633             November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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

G.R. No. 161658             November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.

"The essence of privacy is the right to be left alone.²⁶ In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. ²⁷ And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.²⁸ Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.²⁹

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.³⁰ And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.³¹ In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?³²

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.³³ In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;³⁴ that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."³⁵ Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.³⁶ To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.³⁷ And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.³⁸

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.³⁹ In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.⁴⁰ To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs."

3. The idyllic morning calm in San Ildefonso, Bulacan, a small town north of Manila, was shattered by gunshots fired in rapid succession. The shooting claimed the life of young Alex Vinculado and seriously maimed his twin brother Levi who permanently lost his left vision. Their uncle, Miguel Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced the right side of his body and burrowed in his stomach where it remained until extracted by surgical procedure.

As a consequence, three (3) criminal Informations - one (1) for homicide and two (2) for frustrated homicide - were originally filed before the Regional Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San Ildefonso, and Godofredo Diego, a municipal employee and alleged bodyguard of the mayor. On 14 December 1993, however, the charges were withdrawn and a new set filed against the same accused upgrading the crimes to murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition, with violation of PD 1866 (Crim. Case No. 4007-M-94) for unauthorized carrying of firearm outside his residence; hence, a fourth Information had to be filed.

On 8 October 1996 a consolidated decision on the four (4) cases was promulgated. The trial court found the accused Godofredo Diego guilty beyond reasonable doubt of the crimes of murder and double frustrated murder. However, it acquitted Mayor Honorato Galvez of the same charges due to insufficiency of evidence. It also absolved him from the charge of illegal carrying of firearm upon its finding that the act was not a violation of law.

The acquittal of accused Honorato Galvez is now vigorously challenged by the Government before this Court in a Petition for Certiorari under Rule 65 of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the submission of petitioner that the exculpation of the accused Galvez from all criminal responsibility by respondent Judge Tirso Velasco constitutes grave abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in favor of Galvez, the judge deliberately and wrongfully disregarded certain facts and evidence on record which, if judiciously considered, would have led to a finding of guilt of the accused beyond reasonable doubt. Petitioner proposes that this patently gross judicial indiscretion and arbitrariness should be rectified by a re-examination of the evidence by the Court upon a determination that a review of the case will not transgress the constitutional guarantee against double jeopardy. It is urged that this is necessary because the judgment of acquittal should be nullified and substituted with a verdict of guilt.

The main hypothesis of the Government is that elevating the issue of criminal culpability of private respondent Galvez before this Tribunal despite acquittal by the trial court should not be considered violative of the constitutional right of the accused against double jeopardy, for it is now settled constitutional doctrine in the United States that the Double Jeopardy Clause permits a review of acquittals decreed by US trial magistrates where, as in this case, no retrial is required should judgment be overturned.

QUESTION: (1) What is double jeopardy?What are the elements of double jeopardy?

The Rules of Court on Criminal Procedure relative to double jeopardy and the effect thereon of acquittals adhere strictly to constitutional provisions. The pertinent portions of Sec. 7 of Rule 117 thereof provide -

Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information x x x x

From this procedural prescription alone, there can be no mistaking the requisites for invoking double jeopardy: (a) a valid complaint or information; (b) before a competent court before which the same is filed; (c) the defendant had pleaded to the charge; and, (d) the defendant was acquitted, or convicted, or the case against him dismissed or otherwise terminated without his express consent.86 It bears repeating that where acquittal is concerned, the rules do not distinguish whether it occurs at the level of the trial court or on appeal from a judgment of conviction. This firmly establishes the finality-of-acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals.

 (2) In the above case, is the Government correct in saying that the acquittal of Galvez be re-examined as the Judge therein committed grave abuse of discretion amounting to lack of jurisdiction? Explain.



ANSWER:ANSWER: Double jeopardy sets in since the accused was already acquitted. 

Read: EN BANC

G.R. No. 127444               September 13, 2000

PEOPLE OF THE PHILIPPINES, petitioner,
vs.HON. TIRSO D. C. VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City, and HONORATO GALVEZ, respondents.

We agree. The office of the common law writ of certiorari is to bring before the court for inspection the record of the proceedings of an inferior tribunal in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law. However, the original function and purpose of the writ have been so modified by statutes and judicial decisions. It is particularly so in the field of criminal law when the state is applying for the writ and problems arise concerning the right of the state to appeal in a criminal case. As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case in the absence of a statute clearly conferring that right. The problem comes into sharper focus when the defendant contends, in effect, that the prosecution is attempting to accomplish by the writ what it could not do by appeal, and that his constitutional rights are being thus encroached upon.

Generally, under modern constitutions and statutes, provisions are available as guides to the court in determining the standing of the prosecution to secure by certiorari a review of a lower court decision in a criminal case which has favored the defendant. In most instances, provisions setting forth the scope and function of certiorari are found together with those relating to the right of the state to appeal or bring error in criminal matters. There is some indication that courts view the writ of certiorari as an appeal in itself where the applicant shows that there is no other adequate remedy available, and it is not uncommon to find language in cases to the effect that the state should not be permitted to accomplish by certiorari what it cannot do by appeal. Thus, if a judgment sought to be reviewed was one entered after an acquittal by a jury or the discharge of the accused on the merits by the trial court, the standing of the prosecution to review it by certiorari is far more likely to be denied than if it were such an order as one sustaining a demurrer to, or quashing the indictment, or granting a motion for arrest of judgment after a verdict of guilty.

Philippine jurisprudence has been consistent in its application of the Double Jeopardy Clause such that it has viewed with suspicion, and not without good reason, applications for the extraordinary writ questioning decisions acquitting an accused on ground of grave abuse of discretion.

The petition at hand which seeks to nullify the decision of respondent judge acquitting the accused Honorato Galvez goes deeply into the trial court's appreciation and evaluation in esse of the evidence adduced by the parties. A reading of the questioned decision shows that respondent judge considered the evidence received at trial. These consisted among others of the testimonies relative to the positions of the victims vis-à-vis the accused and the trajectory, location and nature of the gunshot wounds, and the opinion of the expert witness for the prosecution. While the appreciation thereof may have resulted in possible lapses in evidence evaluation, it nevertheless does not detract from the fact that the evidence was considered and passed upon. This consequently exempts the act from the writ’s limiting requirement of excess or lack of jurisdiction. As such, it becomes an improper object of and therefore non-reviewable by certiorari. To reiterate, errors of judgment are not to be confused with errors in the exercise of jurisdiction.

4. On October 19, 2010, at around 8:00 p.m., Intelligence Officer  Albert Orellan (IO1 Orellan) and his team were at the Regional Office of the Philippine Drug Enforcement Agency (PDEA) when they received information from a confidential informant (CI) that Lim had engaged in the sale of prohibited drugs in his house at Zone 7, Cabina, Bonbon, Cagayan de Oro City. The team immediately prepared to conduct a buy-bust operation and coordinated with the nearest police station. They then left to conduct the buy-bust operation and reached the target area at around 10:00 p.m., or two hours after they received the information from the CI.

Upon reaching the target area, the poseur-buyer and the CI knocked at the door of Lim's house. Eldie Gorres (Gorres), Lim's stepson, came out and invited them to enter. Inside the house, Lim was sitting on the sofa while watching the television while the supposed sale of shabu happened between Gorres and the poseur-buyer. After the supposed consummation of the sale, the police officers barged into the house and arrested Lim and Gorres. The two were then prosecuted for violation of Sections 5 and 11, Article II of Republic Act No. (R.A.) 9165.

QUESTIONS:

A. As a police officer, what should be done next is to conduct an inventory, photography and marking of the “shabu” from the pusher. Where should this inventory, photography and marking be made?

(1) IF the seizure was pursuant to a search warrant, the physical inventory and photography shall be conducted at the place where the search warrant is served.

(2) IF the seizure was not pursuant to a search warrant (i.e. warrantless search) then the physical inventory and photography could be done at the nearest police station or at the nearest office of the apprehending officer/team.

EXCEPTION:

IF not complied with, the police officer must state (1)justifiable grounds why no compliance was made, with the (2) assurance that the integrity and the evidentiary value of the seized items are properly preserved. 

B. Is there a need for witnesses during the said inventory and marking? How many and what are the witnesses needed just in case?

Yes. Under the present rules only two witnesses are required: an elected public official and a media representative or a representative from the DOJ.

"(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

C. To prove the crime of pushing drug, how would you prove the corpus delicte of the case?

1. For the prosecution of illegal sale of drugs to prosper, the following elements must be proved:

(a) the identity of the buyer and seller, the object, and the consideration; and

(b) the delivery of the thing sold and its payment.

What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the prohibited or regulated drug or the corpus delicti^.

(2) For illegal possession of dangerous drugs, the following elements must be established:

[a] the accused was in possession of dangerous drugs;

          [b] such possession was not authorized by law; and

[c] the accused was freely and consciously aware of being in possession of dangerous drugs."

D. What is the meaning of chain of custody with respect to drug cases?

Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements R.A. No. 9165, defines chain of custody as follows: Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/ confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.

5. Two constitutional rights—speedy trial and freedom from double jeopardy—are interposed as defenses by the accused in this petition for review on certiorari.

The petitioner asks us to review and annul the orders of the Court of First Instance of Quezon, Branch V, which dismissed the criminal cases against accuse Demetrio Jardin because his constitutional right to speedy trial was allegedly violated.

The criminal prosecutions originated from a letter complaint of the Provincial Auditor of Quezon requesting the Provincial Fiscal to file the necessary criminal action under Article 217 of the Revised Penal Code against Demetrio Jardin for malversation of public funds thru falsification of public documents on six counts.

The cases were assigned to Assistant Fiscal Meliton V. Angeles who set them for preliminary investigation. The accused moved to postpone the investigation twice. On the third time that the investigation was re-set, the accused and his counsel failed to appear.

On the fourth resetting, the accused and his counsel again failed to appear. Inspire of their absence, the preliminary investigation was conducted and shortly afterwards, six informations were filed against the accused before the Court of First Instance of Quezon, Branch II, docketed as Cases Nos. 16052 (0043-M), 16053 (0044-M), 16054 (0045-ML 16055 (0046-M), 16056 (0047-M), and 16057 (0048-M). The arraignment was set for May 9, 1967.

The records show that from May 9, 1967, the arraignment was re-set for June 6; then re-set for June 26; then from August 16, the same was re-set for September 5, all because of the motions for postponement filed at the instance of the accused.

When the arraignment of the accused was called on September 5, 1967, counsel for the accused verbally moved for reinvestigation on the ground that the accused was not given the opportunity to present his defense during the preliminary investigation. This was granted by the court and the first reinvestigation was set on November 24, 1967. On this date, however, the Investigating Fiscal motu proprio postponed said reinvestigation due to the non-appearance of accused and his counsel and re-set the date for December 21, 1967.

A series of postponements was again filed by the accused causing further. delays of the reinvestigation. On June 27, 1968, accused and his counsel appeared together but requested for a period of fifteen (15) days within which to file a memorandum.

In view of the expiration of the 15-day period, the Investigating Fiscal filed a manifestation before the court that the records of these cases be returned and the trial on the merits of the same be set.

The court without acting on said manifestation, issued an order transferring the six (6) cases to the new branch (Branch V) of the Court of First Instance at Mauban, Quezon. Upon receipt by the latter of the records of these cases, the arraignment and trial were set for December 3, 1968.

On the latter date, the counsel for the accused sought again the postponement of the arraignment and this was followed by more postponements, all at the instance of the accused. (Original records, [0043-M] pp. 90,93,120 and 125).

On March 31, 1969, counsel for the accused moved for the postponement of the arraignment and requested the court that the records be returned again to the Office of the Fiscal for further reinvestigation. This was granted and the reinvestigation was again set for May 5, 1969. The accused and his counsel, however, failed to appear and thus, the said reinvestigation was re-set for June 2, 1969. On this date, counsel for accused requested that he be given five (5) days within which to file a written sworn statement of the accused which would constitute the defense of the latter, subject to the cross-examination of the Investigating Fiscal.

Considering the fact that the period to file such sworn statement had already expired without anything being filed, the records of the cases were returned to the court which set said cases for arraignment and trial on September 2, 1970. On this date, the accused again moved for postponement.

When these cases were called for arraignment on September 8, 1970, Demetrio Jardin, pleaded not guilty to the crime as charged, after which he requested that the trial be postponed and re-set for September 29, 1970.

On September 29, 1970, the trial scheduled on that day was postponed again on motion of counsel for the accused. The trial was re-set for October 12, 1970, with notice to both parties.

On October 12, 1970, when the said criminal cases were called for hearing, no one appeared for the prosecution, except a state witness, Mr. Cesar Alcala of the Provincial Auditor's office who remained silent during the proceedings.

Invoking his client's constitutional right to speedy trial and seizing the opportunity to take advantage of the prosecution's failure to appear on that day, the defense counsel moved for the dismissal of the cases. The respondent court granted the oral motion for dismissal "for reasons of constitutional rights of the accused Demetrio Jardin. "

Two questions are now raised by the People in this appeal:

I. Considering the factual setting in the criminal cases at bar, was the respondent Court correct in dismissing the cases and in predicating the dismissal on the right of the defendant to a speedy trial?

II. Does the present appeal place the respondent accuse in double jeopardy?

RULE ON THE TWO ISSUES.

ANSWER: Read: FIRST DIVISION

G.R. No. L-33037-42 August 17, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellant
vs.DEMETRIO JARDIN, accused-appellee.

The dismissal of the criminal cases against the accused by the respondent court on the ground that his right to speedy trial had beer violated was devoid of factual and legal basis. The order denying the motion for reconsideration is similarly infirm. There being no basis for the questioned orders, they are consequently null and void.

Would a reinstatement of the dismissed cases place the accused in double jeopardy?

In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must be present in the first prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. (Rule 117, Section 9, Rules of Court; People v. Ledesma, 73 SCRA 77). The last requisite assumes a valid acquittal and a valid acquittal presupposes a valid judgment by a court of competent jurisdiction. Since in the instant cases, the dismissal was void for having been issued without legal basis, it follows that the acquittal brought about by the dismissal is also void. Hence, no jeopardy can attach from such acquittal. The act of respondent judge in discussing the cases amounted to lack of jurisdiction which would prevent double jeopardy from attaching. In the case of People v. Court of appeals (10 1 SCRA 450) we ruled:

Private respondents further argue that a judgment of acquittal ends the case which cannot be appealed nor reopened, otherwise, they would be put twice in jeopardy for the same offense. That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. (Comia v. Nicolas, 29 SCRA 492 [1969]) By it no rights are divested Through it, no rights can be attains & Being worthless, all proceedings founded upon it are equally worthless It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Gomez v. Concepcion, 47 Phil. 717, 722.[1925]; Chavez vs. Court of Appeals, 24 SCRA 663, 685 [1968]; Parades v. Moya, 61 SCRA 526, [1974]). ...

We also note that the dismissall of the criminal cases was upon motion and with the wxpress consent of respondent Demetrio Jardin. For double jeopardy to attach, the general rule is that the dismissal of the case must be without the express consent of the accused. (People v. Salico, 84 Phil. 722; People v. Obsania, 23 SCRA 1249; People v. Pilpa, 79 SCRA 81; and People v. Cuevo, 104 SCRA 312).

If the accused had been denied his right to speedy trial or if some other basic right had been impaired, the doctrine of waiver of the right to invoke double jeopardy would not apply even if the accused had expressly moved for the termination of proceedings. In the instant case, however, the defendant had deliberately used all the available dilatory tactics he could utilize and abused the principle that the accused must be given every opportunity to disprove the criminal charge. The doctrine of double jeopardy was never intended for this purpose.

Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke the attorneys for both the defense and the prosecution and to a certain extent, the court itself because of the breach of duties to the courts and to the administration of justice apparent in this case.

Note: If you did not answer the questions correctly, please read the cases again.