THIRD DIVISION
March 5, 2018
G.R. No. 21797
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
RESURRECON JUANILW MANZANO, JR. and
REZOR JUANILLO MANZANO, Accused
REZOR JUANILLO MANZANO, Accused-Appellant.
D E C I S I O N
MARTIRES, J.:
This resolves the appeal of accused-appellant Rezor Juanillo
Manzano (accused-appellant) from the 29 October 2014 Decision1 of the Court of
Appeals (CA), Twentieth Division in CA-G.R. CR-HC No. 01473
affirming in toto the 17 April 2012 Decision2 of the Regional Trial
Court (RTC), Branch 12, San Jose, Antique, finding him guilty
beyond reasonable doubt of Murder under Article (Art.) 248 of
the Revised Penal Code (RPC).
THE FACTS
The accused-appellant and his elder brother Resurrecion
Manzano (Resurrecion) were charged with murder before the RTC
of San Jose, Antique, in an Information3 docketed as Crim.
Case No. 10-07-8009, the accusatory portion of which reads:
That on or about the 19th day of March 2010, in the Municipality of
Hamtic, Province of Antique, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, being then armed
with knives, conspiring, confederating, and mutually helping one another, with
intent to kill, did then and there, willfully, unlawfully, and feloniously
attack, assault, and stab with said knives one Lucio Silava, thereby inflicting
upon the latter wounds on his body which caused his instantaneous death.
With qualifying circumstance of treachery and abuse of superior
strength.
Contrary to the provisions of Article 248 of the Revised Penal
Code, as amended.
The parties agreed to have an inverted trial after the
accused-appellant who, pleading not guilty during the arraignment, raised the
justifying circumstance of self-defense. Resurrecion remained at large.
To prove his claim of self-defense, the accused-appellant himself
testified. SP02 Roberto Javier (SP02 Javier) of the Hamtic
police office took the witness stand to prove that the accused-appellant
voluntarily surrendered.
The prosecution tried to prove its case against the
accused-appellant by calling to the witness stand Dr. Ma. Eva D.
Pacificador (Dr. Pacificador), Victoria N. Silava (Victoria), Atty.
Rean S. Sy (Atty. Sy), and Luisa P. Monteclaro (Luisa).
Version of the Defense
At about 9:30 p.m. on 19 March 2010, while the accused-appellant
was home sitting by the window, he saw Lucio Silava (Lucio) throwing
stones at his house. The electric lamppost was lighted, thus, the
accusedappellant, who was then eighteen years old, was sure that it was Lucio.4
The accused-appellant immediately went out to inquire from Lucio
why he was throwing stones at his house but Lucio threw a stone at him that hit
his right knee and caused him to fall down. Lucio rushed towards the
accused-appellant to stab him with a knife but was unsuccessful as they
grappled for its possession. It was at that instance that the accused-appellant
called out to Resurrecion, who was home that time, to run away so that he would
not be involved. Because Lucio was very drunk, the accusedappellant was able to
take hold of the knife, but blacked out and started stabbing Lucio. Thereafter,
the accused-appellant ran away and proceeded to the house of Reno Manzano (Reno), an
elder brother, at Barangay San Angel, San Jose, Antique, where he also met
Resurrecion. The following day, the accused-appellant surrendered to the police
authorities.5
The accused-appellant had known Lucio for eight years already since
the latter's house was in front of his house and were separated only by the
road. Accused-appellant was as tall as Lucio but the latter had a bigger body
build. Resurrecion had a dislocated right shoulder and a smaller build than
that of Lucio and the accused-appellant.6
Version of the Prosecution
At about 9:00 p.m. on 19 March 2010, the spouses Lucio and Victoria
were inside their store fronting the accused-appellant's house. Lucio was
having his dinner at the kitchen inside the store while Victoria was watching
the store when the accused-appellant and Resurrecion called out from the gate
saying that they would buy cigarettes. Because the gate leading to the store
was already closed, Lucio told the accused-appellant and Resurrecion to come.7
Resurrecion stood outside the store and told Victoria that he
wanted to buy Fortune white cigarettes and handed her ₱20.00. The
accused-appellant entered the store and proceeded to where Lucio was having
dinner. After realizing that she had no more stock of the Fortune white
cigarette, Victoria told Resurrecion who, in reply, said that he would no
longer buy cigarettes and then proceeded towards the kitchen. Thereafter,
Victoria heard Lucio ask, "What wrong have I committed?" Victoria
rushed to the kitchen and there saw Lucio bloodied and leaning on the door,
while the accusedappellant and Resurrecion were stabbing him.8
Victoria went out of the store shouting for help and saying that
the accused-appellant and Resurrecion were stabbing Lucio. When Victoria went
back inside, she saw Lucio run outside the store but still within the fenced
premises, and the accused-appellant and Resurrecion were going after him. From
where she stood, Victoria saw Resurrecion hold Lucio's hands while the
accused-appellant, who was positioned behind Lucio, held Lucio’s body with one
arm while with his other hand stabbed Lucio’s back. When Resurrecion released
his grip on Lucio, the latter fell face down but the accused-appellant and
Resurrecion continued to stab him causing Victoria to utter, "I will let
you eat the whole body of my husband alive." The accused-appellant and
Resurrecion thereafter ran towards the direction of the farm.9
Lucio was brought to the hospital but Victoria had to stay behind
to find money for his medical expenses. On her way to the hospital, Victoria
was informed that Lucio had died. Luisa, a cousin of Lucio, took pictures of
the dead body. Victoria had the pictures10 developed and secured Lucio's death
certificate.11 Victoria incurred a
total of ₱15,000.0012 for the funeral
expenses.13
On 23 March 2010, Dr. Pacificador conducted a postmortem
examination on the body of Lucio, the results of which follow:
Left Anterior Thorax
StabWound # 1 - Horizontal in direction about 3 cm in length located at
the left anterior chest below the left clavicle penetrating the upper lobe of
the left lung and aorta.
StabWound # 2 - Vertical in direction about 3 cm in length located
below wound #1 resulting into fracture of 3rd rib.
Right Anterior Thorax
StabWound # 3 - Vertical in direction about 2 cm in length on the left
shoulder, non-penetrating.
StabWound # 4 - Vertical in direction about 4.5 cm in length located
below right clavicle penetrating the upper lobe of the right lung.
StabWound # 5 - Vertical in direction about 4 cm in length below the
sternum penetrating the liver.
StabWound # 6 - Vertical in direction about 4.5 cm in length about 3 cm
below wound # 5 penetrating the liver.
StabWound # 7 - Vertical in direction about 1.5 cm in length below
wound # 6 non-penetrating.
Extremities
StabWound # 8 - Vertical in direction about 3.5 cm in length located on
the left upper arm going through the axilla.
StabWound# 9 - Horizontal in direction about 2.5 cm in length on the left
lower arm below the left antecubital fossa, nonpenetrating
StabWound# 10 - Horizontal in direction about 3 cm in length just below
wound # 9 left lower arm.
StabWound # 11 - Horizontal in direction about 2 cm in length located
below left wrist, non-penetrating.
Posterior Thorax
StabWound # 12 - Vertical in direction about 2.5 cm in length just
below the neck in between scapula, non-penetrating.
StabWound # 13 - Vertical in direction about 5 cm in length just below
wound# 12, non-penetrating.
StabWound # 14 - Vertical in direction about 2 cm in length below
wound# 13, non-penetrating.
StabWound # 15 - Horizontal in direction about 1.5 cm in length on the
right lumbar area, non-penetrating.
Cause of death:
Hypovolemic Shock secondary to Hemorrhage secondary to Multiple
Stab Wounds.14
It was a week after the stabbing incident that Atty. Sy took
pictures15 of the place where
Lucio was attacked. He saw splatters of dried blood inside the store and within
the fenced perimeter enclosing the crime scene.16
The Ruling of the RTC
According to the RTC, a careful and deeper examination of the facts
and circumstances tend to contradict the accused-appellant's version of the
incident and his claim that he acted in self-defense. In so ruling, the RTC
considered the following: that if there was no intention on the part of the
accused-appellant and Resurrecion to kill Lucio, they could have easily
overpowered him because he was very drunk at that time; it was not convinced
that Lucio hit the accused-appellant on his right knee causing him to fall
since the latter failed to present a medical certificate notwithstanding his
contention that he was brought by a police officer to a doctor for his knee
injury; it was not satisfied with the accused-appellant's version that after he
fell down, Lucio held his neck and stabbed him because not once was the
accused-appellant hit; the number of stab wounds sustained by Lucio negates
self-defense; the serious injuries sustained by Lucio demonstrate the
accused-appellant's intent to kill; the splattered blood inside the store and
on the bamboo slats serving as wall of the kitchen are proofs that the incident
started at the kitchen of Lucio’s store and continued outside but still within
the fenced perimeter; that when the accused-appellant blacked out, he was still
able to shout at Resurrecion to run away so as not to be involved in the
incident; the portrayal on how the accused-appellant singlehandedly stabbed
Lucio was not worthy of credence; the claim of the accused-appellant that he
hit Lucio frontally was denied by the postmortem examination results; the only
plausible explanation for Lucio's back injuries was that these were inflicted
by either the accused-appellant or Resurrecion or by both of them; and the
accused-appellant had not assailed or contradicted, by testimonial or
documentary evidence, the truthfulness and trustworthiness of Victoria's
testimony.17
On the one hand, the R TC found that the accused-appellant and
Resurrecion conspired as shown by their concerted action of surprising Lucio in
the kitchen and, without justifiable reason, helping each other assault their
victim. Moreover, the RTC ruled that the commission of the felony was attended
by the aggravating circumstance of noctumity which facilitated the assailants'
escape. According to the RTC, it was unfortunate that this circumstance was not
properly appreciated as this was not alleged in the information.18
The RTC, however, was not convinced that the accused-appellant
voluntarily surrendered considering the following reasons: he fled from the
locus criminis and proceeded to Reno's house in San Jose instead of going to
the Hamtic police station; he did not surrender to the San Jose police; and it
was Reno who informed the Hamtic police station of the accused-appellant's
presence in San Jose, thus, the policemen proceeded to Reno's house and took
custody of the accused-appellant.
The dispositive portion of the RTC decision reads:
PREMISES CONSIDERED, judgment is hereby rendered convicting accused REZORMANZANOy JUANILLO, beyond reasonable doubt, of
Murder under Art. 248 of the Revised Penal Code. Accordingly, he is hereby
sentenced to suffer the penalty of reclusionperpetua.
He is also ordered to indemnify the legal heirs of Lucio Silava the
amount of ₱75,000.00 for the death of the said victim and to pay the said legal
heirs actual expenses in the amount of ₱15,000.00 as well as moral damages
amounting to ₱25,000.00 and to pay the costs.
SO ORDERED.19
Feeling aggrieved with the decision of the RTC, the
accused-appellant appealed before the CA.
The Ruling of the CA
The CA noted the absence of unlawful aggression on the part of
Lucio which made the claim of self-defense unavailable. According to the CA,
the accused-appellant must rely on the strength of his evidence and not on the
weakness of the prosecution's evidence since he had admitted that he killed
Lucio. The CA held that there was no proof that the RTC failed to appreciate
facts and circumstances which would have merited the accused-appellant's
acquitta1.20
The CA sustained the ruling of the RTC that treachery and abuse of
superior strength attended the killing of Lucio, and that the accused-appellant
had not voluntarily surrendered to the police authorities.21
In view of its findings, the CA affirmed in toto the
decision of the RTC, thus:
WHEREFORE, the appeal is hereby DENIED. The Decision dated March
20, 2012 of the RTC, Branch 12, San Jose, Antique in Criminal Case No.
10-07-8009 is hereby AFFIRMED in toto.
SO ORDERED.22
ISSUES
I
THE TRIAL COURT ERRED IN
GIVING CREDENCE TO THE INCONSISTENT AND IMPROBABLE TESTIMONY OF VICTORIA
SILAVA.
II
THE TRIAL COURT ERRED IN
NOT APPRECIATING INCOMPLETE SELF-DEFENSE BY ACCUSED-APPELLANT REZOR MANZANO, AS
A PRIVILEGED MITIGATING CIRCUMSTANCE.
III
THE TRIAL COURT ERRED IN
FINDING THAT THE ACCUSEDAPPELLANT ACTED WITH ABUSE OF SUPERIOR STRENGTH.
IV
THE TRIAL COURT ERRED IN
NOT APPRECIATING THE ACCUSED-APPELLANT'S VOLUNTARY SURRENDER AS A MITIGATING
CIRCUMSTANCE.23
OUR RULING
The appeal does not deserve any merit.
The findings of the RTC
as to the
credibility of
witnesses should
be
respected
especially
when these are
affirmed
by the CA.
It has been trenchantly maintained in a catena of cases that when
the issues involve matters of credibility of witnesses, the findings of the
trial court, its calibration of the testimonies, and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings,
are accorded high respect, if not conclusive effect.24 The assessment of the
credibility of the witnesses and their testimonies is best undertaken by the
trial court because of its unique opportunity to observe the witnesses first
hand and to note their demeanor, conduct, and attitude under gruelling
examination. These factors are the most significant in evaluating the sincerity
of witnesses and in unearthing the truth, especially in the face of conflicting
testimonies.25 The factual findings
of the R TC, therefore, are accorded the highest degree of respect especially
if the CA adopted and confirmed these,26 unless some facts or
circumstances of weight were overlooked, misapprehended or misinterpreted as to
materially affect the disposition of the case.27 In the absence of
substantial reason to justify the reversal of the trial court’s assessment and
conclusion, as when no significant facts and circumstances are shown to have
been overlooked or disregarded, the reviewing court is generally bound by the
former’s findings.28
It must be noted that it is a general rule in criminal cases that
an examination of the entire records of a case may be explored for the purpose
of arriving at a correct conclusion; as an appeal in criminal cases throws the
whole case open for review, it being the duty of the appellate court to correct
such error as may be found in the judgment appealed from, whether they are made
the subject of the assignment of errors or not.29 It is for this reason
that the Court has painstakingly reviewed the records of this case; yet, it
found no reason to depart from the well-entrenched rule that the findings of
the R TC as to the credibility of witnesses should not be disturbed considering
the absence of any showing that it had overlooked a material fact that
otherwise would change the outcome of the case or had misunderstood a
circumstance of consequence in their evaluation of the credibility of the
witnesses.30
The testimony of Victoria identifying the accused-appellant and
Resurrecion as the ones who assaulted Lucio was positive, convincing, and
straightforward, viz:
Q. You said a while ago that your store is lighted with bulb, what
is the voltage of the electric bulb?
A. Ten (10) watts.
Q. So, what did you do after you heard your husband said those
words?
A. I immediately went towards the door of the store towards the
kitchen area and I saw my husband leaning on the wall full of blood and the two
accused simultaneously stabbing my husband.
Q. So both of them are holding a knife?
A. Yes, sir.
Q. And you saw both of them stabbing your husband?
A. Yes, sir.
Q. Please tell us how near is your door to the [location] of your
husband when he was stabbed?
A. (Witness as this juncture pointed at the distance from the
witness stand to the place occupied by Atty. Rivero which is estimated to be
about two (2) meters, as agreed upon by the prosecution and the defense, as the
distance from the door to the [location] where the husband was stabbed.)
Q. And when you came out of your door that was your distance from
your husband after he was being stabbed?
A. Yes, sir.
Q. And please describe to us what did you do immediately after
coming out of that door?
A. From the door, I saw my husband leaning on the wall full of
blood with the two accused simultaneously stabbing him.
Q. And you saw that there was no structure blocking your side?
A. No, sir.
Q. While they were stabbing your husband, can you tell us if the
two accused uttered any words?
A. Nothing, sir.
Q. Can you recall while standing how many times did the two accused
stab your husband?
A. I cannot count how many times the two accused stabbed my husband
but I saw both of them stabbing my husband.
Q. At that time your husband is facing you?
A. Yes, sir because he was leaning on the wall.
Q. What did you do next?
A. After that I ran out of [the] house and ran towards the fence
and shouted that Resurrecion and Rezor are stabbing my husband and I went back
inside the house after saying those words.
Q. When you said those words you came back to your house, please
tell us when you came back to your house, you entered the main gate or front of
the road?
A. Just in front of our store when I shouted for help.
Q. While standing on the road facing your husband, please tell us
what did you see?
A. While I was standing on the road, I saw Resurrecion holding my
husband and holding [his] hands while Rezor was behind my husband and one hand
was holding the body of my husband and the other hand was stabbing at the back
of my husband.
Q. At that point did you see on what portion of the body of your
husband was Rezor stabbing him?
A. At the back.
Q. How far were you from them?
A. Very near. (x x x two (2) meters, as agreed upon by both
counsel)
Q. Please tell us, when the two accused Resurrecion and Rezor were
holding your husband and Resurrecion was stabbing on the back, in what portion
were they located?
A. In front of our store.
COURT:
Q. Are you telling the court that the two accused were already
outside the store?
A. Yes, sir.
ATTY. SY:
Q. Outside the store but within the gate?
A. Yes, sir.
COURT:
Q. From inside the kitchen, can you tell the court where did the
three pass by?
A. My husband was able to run outside the house.
Q. So when your husband ran outside the house, the two accused
followed him?
A. Yes, sir.
Q. When you saw your husband and the two accused in that position
they were directly in front of your store but still within the gate?
A. Yes, sir.
Q. Is this store lighted?
A. Yes, sir, it is lighted with a bulb.
Q. And from your position you can properly see their faces?
A. Yes, sir.
Q. Tell us what happened next?
A. At that particular moment, I saw Resurrecion holding the two
hands of my husband while Rezor's [other] hand was holding my husband while the
other hand was stabbing my husband. I cannot recall which hand was used by him
in stabbing my husband.
x x x x
Q. So, are you telling the court that Rezor was in the grip of your
husband?
A. Yes. Sir.
x x x x
Q. Now, do you realize that both injuries of your husband were in
[the] front portion of his body?
A. Yes, sir.
Q. About how many times did you see Resurrecion stab your husband
while he was at the back of your husband?
A. I saw Rezor stabbed my husband once and that was the time that
Resurrecion released my husband from his grip and so my husband fell to the
ground facing down.
x x x x
ATTY. SY:
x x x x
Q. So, when your husband fell down, what did you do next?
A. Rezor and Resurrecion helped each other in stabbing him and at
that point in time I told Rezor and Resurrecion "I will let you eat the
whole body of my husband alive," and then that was the time the two
accused ran away."31
It was clear from the testimony of Victoria that she was able to
personally witness when the accused-appellant and Resurrecion assaulted Lucio;
and that she could not be mistaken as to the assailants' identity since the
place where the crime happened was well-lighted.
Accused-appellant tried to dent the credibility of Victoria by
asserting that she did not actually see the scuffle between him and Lucio as
verified by her admission during the cross-examination by the defense.32
The contention of the accused-appellant is without merit. The
records bear out that Victoria admitted that right after she heard Lucio utter
"What wrong did I commit," she immediately went to the kitchen and
found her husband leaning on the kitchen door, bloodied, while the
accused-appellant and Resurrecion were stabbing him. Contrary to the claim of
the accused-appellant, a review of the testimony of Victoria would show that
what she claimed she did not witness was the scuffle, if there was any, between
Lucio and the accused-appellant prior to her hearing her husband utter
"What wrong did I commit?" It was also pointed out that Victoria had
claimed that she did not hear anything from the accused-appellant and
Resurrecion before she heard Lucio utter these words in a soft and pleading
manner, hence, accentuating the fact that no such scuffle had taken place.
In the same vein, the position of the accused-appellant that
Victoria could not have seen the actions of Lucio and the accused-appellant as
she had gone out of the house to ask for help,33 fails to persuade.
Victoria stated that after running out to the street and shouting for help, she
went back inside the fenced premises of the store; thus, she was able to see
Lucio run outside from the kitchen, and saw the accused-appellant and
Resurrecion follow Lucio, get hold of him, and stab him again.34
In stark contrast to the allegation of the accused-appellant that
Victoria's statements before the trial court were inconsistent and incredible,
a perspicacious review of her testimony sustains a finding that her narration
of what happened on that fateful day of 19 March 2010 was plausible, being
consistent in all important details. For sure, the records are bereft of any
showing that Victoria's testimony was inspired by ill motive or was attended by
bad faith. Jurisprudence holds that when there is no evidence to show any
improper motive on the part of the witness to testify falsely against the
accused or to pervert the truth, the logical conclusion is that no such motive
exists, and that the former's testimony is worthy of full faith and credit.35
We underscore that, except for the alleged inconsistencies which to
the mind of the Court are inconsequential, the accused-appellant failed to
proffer any convincing and material variations in the testimony of Victoria
that would warrant the Court to reverse the RTC’s finding as to her
credibility. It is settled in this jurisdiction that as long as the testimony
of the witness is coherent and intrinsically believable as a whole,
discrepancies in minor details and collateral matters do not affect the
veracity or detract from the essential credibility of the witnesses'
declarations.36 Of utmost meaning to
this case is the ruling laid down in Velasquez v. People,37 viz:
Jurisprudence is replete with clarifications that a witness'
recollection of [a] crime need not be foolproof: "Witnesses cannot be
expected to recollect with exactitude every minute detail of an event. This is
especially true when the witnesses testify as to facts which transpired in
rapid succession, attended by flurry and excitement." This is especially
true of a victim's recollection of his or her own harrowing ordeal. One who has
undergone a horrifying and traumatic experience "cannot be expected to
mechanically keep and then give an accurate account" of every minutiae.
The accused-appellant
assumes the burden
of
establishing his
plea of
self-defense by
credible,
clear, and
convincing
evidence.
Jurisprudence instructs that an accused who pleads a justifying
circumstance under Article 1138 of the Revised Penal
Code admits to the commission of acts, which would otherwise engender criminal
liability.39 Corollary thereto, the rule
consistently adhered to in this jurisdiction is that when the accused admit
that they are the authors of the death of the victim, and their defense is
anchored on self-defense, it becomes incumbent upon them to prove the
justifying circumstance to the satisfaction of the court.40 With this admission, the burden of
evidence is shifted to the appellant to prove that all the essential elements
of self-defense are present.41 Verily, to invoke self-defense
effectually, there must have been an unlawful and unprovoked attack that
endangered the life of the accused, who was then forced to inflict severe
wounds upon the assailant by employing reasonable means to resist the attack.42 Self-defense, to be successfully
invoked, must be proven by clear and convincing evidence that excludes any
vestige of criminal aggression on the part of the person invoking it.43 Conviction follows if the evidence for
the accused fails to prove the existence of justifying circumstances.44
Accused-appellant contends that he merely repelled the unlawful
aggression of Lucio, viz: when Lucio threw a stone at him that
hit his knee; and when Lucio rushed towards him to stab him. Additionally,
accusedappellant avers that his testimony was credible that he alone inflicted
the stab wounds on Lucio.45
To successfully invoke self-defense, an accused must establish: (1)
unlawful aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense.46
On the first element, the consistent teaching by the Court on
unlawful aggression is as follows:
Unlawful aggression on the part of the victim is the primordial
element of the justifying circumstance of self-defense. Without unlawful
aggression, there can be no justified killing in defense of oneself. The test
for the presence of unlawful aggression under the circumstances is whether the
aggression from the victim put in real peril the life or personal safety of the
person defending himself; the peril must not be an imagined or imaginary
threat. Accordingly, the accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there must be a
physical or material attack or assault; (b) the attack or
assault must be actual, or, at least, imminent; and (c) the
attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with
physical force or with a weapon, an offensive act that positively determines
the intent of the aggressor to cause the injury. Imminent unlawful aggression
means an attack that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be merely imaginary, but
must be offensive and positively strong (like aiming a revolver at another with
intent to shoot or opening a knife and making a motion as if to attack).
Imminent unlawful aggression must not be a mere threatening attitude of the
victim, such as pressing his right hand to his hip where a revolver was
holstered, accompanied by an angry countenance, or like aiming to throw a pot.47
The evidence before the Court palpably lend negative credence to
the presence of unlawful aggression. Primarily, when compared to Victoria's
testimony which withstood the crucible of intense cross-examination by the
defense and the clarificatory questioning by the trial court,
accused-appellant’s testimony was not only incongruous with the evidence on
record but also improbable.
The version of the defense was that the unlawful aggression began with
Lucio who was outside the accused-appellant's house throwing stones at its
roof. Allegedly, Lucio likewise threw a stone at the accused-appellant when he
came out of the house which hit his knee and caused him to fall down. Lucio was
about to stab the accused-appellant with a knife but then a scuffle ensued for
its possession. When the accused-appellant got hold of the knife, he
"blacked out" and stabbed Lucio several times.
The defense’s version of the events is swiftly denied by the
prosecution’s pictures48 showing Lucio’s blood splattered in the
kitchen of Victoria's store and at the fenced premises. These pictures are
silent evidence that confirm the truth of Victoria's testimony and easily
weaken the defense's version that when the accused-appellant acted in
self-defense to Lucio’s unlawful aggression, they were at the road in front of accused-appellant’s
house. Where the physical evidence on record runs counter to the testimonies of
witnesses, the primacy of the physical evidence must be upheld.49
It is noteworthy that the accused-appellant has neither witness nor
evidence to fortify his claim that the unlawful aggression started with Lucio.
Self-defense cannot be justifiably appreciated when uncorroborated by
independent and competent evidence or when it is extremely doubtful by itself.50 The fact that Resurrecion is still in
hiding instead of giving his testimony before the trial court to boost the
theory proffered by the accused-appellant well confirms the finding that the
defense's version of the events was contrived.
To amplify his position that he acted in self-defense, the
accusedappellant tried to make issue of his absence of motive to stab Lucio.
The accused-appellant basically anchored his position on the ruling laid down
by the Court in Borguilla v. Court of Appeals, 51 that "the absence of motive is
important in ascertaining the truth as between two antagonistic theories or
versions of the killing. Herein, it was the victim who had reason to harm the
accused."52
The quoted ruling in Borguilla does not find
meaning in this case considering that the identity of the accused-appellant as
the assailant of Lucio has been firmly established by the prosecution. For
sure, even the accused-appellant admitted that he stabbed Lucio several times
after he blacked out. In Borguilla, because of the
contradictory accounts of the event by both parties, the Court resorted to
searching for facts or circumstances which could be used as valuable aids in
evaluating the probability or improbability of a testimony; thus, the Court had
appreciated the presence of motive of the victim to harm the accused in
ascertaining which of the versions was true. In the present case, however, both
the testimonial and documentary evidence of the prosecution demonstrably
disproved the defense's version that unlawful aggression was initiated by
Lucio. Also revealing was that, in contrast to the Borguilla ruling,
there was conspicuous dearth of evidence to establish that Lucio had motive to
kill the accused-appellant.
Notwithstanding the accused-appellant's contention that he has no
motive in killing Lucio, we point out that motive is not material in this case.
As a general rule, proof of motive for the commission of the offense charged
does not show guilt; and the absence of proof of such motive does not establish
the innocence of accused for the crime charged such as murder.53 To emphasize, "motive is
irrelevant when the accused has been positively identified by an eyewitness.
Intent is not synonymous with motive. Motive alone is not a proof and is hardly
ever an essential element of a crime."54
It is vigorously underscored that the pith and soul of the
justifying circumstance of self-defense is the presence of unlawful aggression;
thus, the absence of this requisite readily converts the claim of self-defense
into nothingness even with the existence of the other elements because the two
other essential elements of self-defense would have no factual and legal bases
without any unlawful aggression to prevent or repel.55 As case law puts it, there can be no
self-defense unless the victim committed unlawful aggression against the person
who resorted to self-defense.56
Accused-appellant's plea of self-defense is controverted by the
nature, number, and location of the wounds inflicted on the victim, since the
gravity of said wounds is indicative of a determined effort to kill and not
just to defend.57 The postmortem examination58 conducted by Dr. Pacificador on the
body of Lucio revealed that he sustained fifteen wounds, four of which were
fatal, and that the cause of his death was hypovolemic shock secondary to
hemorrhage secondary to multiple stab wounds. The findings of Dr. Pacificador
justify a declaration that there was undeniable intent on the part of the
accused-appellant to kill Lucio.
The absence of unlawful aggression on the part of Lucio in this
case unmistakably belies the accused-appellant’s claim of self-defense, whether
complete or incomplete. In view of this, the Court finds no reason to further
discuss the other elements of the justifying circumstance of self-defense and
will proceed to determine the offense committed by the accused-appellant.
The crime committed by
the
accused-appellant
was murder.
The accused-appellant averred that the trial court erred in
convicting him of murder; he maintained that he was guilty only of homicide in
view of the absence of the qualifying circumstances of treachery and abuse of
superior strength .59
The crime of murder, under Article (Art.) 24860 of the Revised Penal Code (RPC), is
committed by any person who, not falling within the provisions of Art. 24661 of the same Code, shall kill another
with treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to insure
or afford impunity.62 Jurisprudence provides that to warrant
a conviction for the crime of murder, the following essential elements must be
present: (a) that a person was killed; (b) that the accused killed him or her;
(c) that the killing was attended by any of the qualifying circumstances
mentioned in Art. 248 of the RPC; and (d) that the killing is not parricide or
infanticide.63
There is no question that the first, second, and fourth elements
are present in this case. It is the resolution of the issue on whether the
qualifying circumstances of treachery and abuse of superior strength that
attended the killing of Lucio can determine whether the accused-appellant
should be held liable for murder. The presence of any one of the circumstances
enumerated in Article 248 of the Code is sufficient to qualify a killing as
murder.64 On the one hand, if the qualifying
circumstances are not present or cannot be proven beyond reasonable doubt, the
accused may only be convicted with homicide under Art. 24965 of the RPC.66
Both the trial and the appellate courts appreciated treachery and
abuse of superior strength in convicting the accused-appellant of murder.
Treachery is present when the offender commits any of the crimes
against a person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might make.67 Treachery is not presumed but must be
proved as conclusively as the crime itself.68 Treachery, whenever alleged in the
information and competently and clearly proved, qualifies the killing and
raises it to the category of murder.69
For the qualifying circumstance of treachery to be appreciated, the
following elements must be shown: (1) the employment of means, method, or
manner of execution would ensure the safety of the malefactor from the
defensive or retaliatory acts of the victim, no opportunity being given to the
latter to defend himself or to retaliate; and (2) the means, method, or manner
of execution was deliberately or consciously adopted by the offender.70
Relative to the first element, the legal teaching consistently
upheld by the Court is that the essence of treachery is when the attack comes
without a warning and in a swift, deliberate, and unexpected manner, affording
the hapless, unarmed, and unsuspecting victim no chance to resist or escape the
sudden blow.71
As to the second element, jurisprudence requires that there must be
evidence to show that the accused deliberately or consciously adopted the means
of execution to ensure its success72 since unexpectedness of the attack does
not always equate to treachery.73 The means adopted must have been a
result of a determination to ensure success in committing the crime.74
Additionally, in murder or homicide, the offender must have the
intent to kill; otherwise, the offender is liable only for physical injuries.75 The evidence to prove intent to kill
may consist of, inter alia, the means used; the nature, location,
and number of wounds sustained by the victim; and the conduct of the
malefactors before, at the time of or immediately after the killing of the
victim.76
The prosecution established that the accused-appellant and
Resurrecion deliberately made it appear to Victoria and Lucio on the night of
19 March 2010, that their main purpose in coming to the store was to buy
cigarettes. They came at night when neighbors were probably asleep which would
make it impossible for them to lend assistance to Lucio. Once the
accused-appellant and Resurrecion were allowed to enter the premises, the
accused-appellant immediately went inside the store and proceeded to the
kitchen where Lucio was having dinner. In the meantime, Resurrecion engaged
Victoria in a talk by pretending that he was buying cigarettes but he, too,
forthwith went to the kitchen upon being told by Victoria that she had run out
of the cigarette he was looking for. Thereafter, Victoria heard Lucio uttering
softly, "What wrong have I committed"; and then she saw her bloodied
husband being stabbed by the accused-appellant and Resurrecion. The absence of
scuffle among Lucio, the accused-appellant, and Resurrecion substantiate the
finding that the attack was swift and deliberate so that the unarmed and
unsuspecting Lucio had no chance to resist or escape the blow from his assailants.
The intent to kill by the accused-appellant and Resurrecion was
confirmed by the fact that they were armed with knives when they attacked Lucio
who sustained a total of fifteen wounds. Despite the fact that Lucio was
already bleeding from his wounds, he was able to run away from his assailants
who pursued him. Resurrecion stood in front of Lucio while the
accused-appellant held him at the back and both assailants continued to stab
him. According to Dr. Pacificador, there were four fatal wounds inflicted on
Lucio, i.e., wounds numbered 1, 4, 5, and 6 which penetrated his major organs.77
It must be pointed out that since treachery had qualified the crime
to murder, the generic aggravating circumstance of abuse of superior strength
is necessarily included in the former.78
The RTC and the CA
were correct in
not
appreciating the
mitigating
circumstance
of voluntary surrender.
For voluntary surrender to be appreciated as a mitigating
circumstance, the following elements must be present, to wit: (1) the accused
has not been actually arrested; (2) the accused surrenders himself to a person
in authority or the latter's agent; and (3) the surrender is voluntary.79 The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit himself
to the authorities, either because he acknowledges his guilt or he wishes to
save the authorities the trouble and expense that may be incurred for his
search and capture.80
Records show that it was Reno who went to the Hamtic police station
to request that they take custody of the accused-appellant who was then in his
house.81 Undoubtedly, when the police went to
Reno's house at San Angel, San Jose, Antique, it was for the purpose of
arresting the accused-appellant and not because he was surrendering to them
voluntarily. Simply put, Reno merely facilitated the accused-appellant's
arrest. Thus, without the elements of voluntary surrender, and where the clear
reasons for the supposed surrender are the inevitability of arrest and the need
to ensure his safety, the surrender is not spontaneous and therefore cannot be
characterized as "voluntary surrender" to serve as a mitigating
circumstance.82
The penalty to be imposed
upon the accused-appellant
Pursuant to Art. 248 of the RPC, the penalty for murder is reclusion
perpetua to death. Applying Art. 63(2)83 of the RPC, the lesser of the two
indivisible penalties, i.e., reclusion perpetua, shall be
imposed upon the accused-appellant in view of the absence of any mitigating or
aggravating circumstance that attended the killing of Lucio.
Following the jurisprudence laid down by the Court in People
v. Jugueta, 84 accused-appellant shall be held liable
for civil indemnity, moral damages, and exemplary damages in the amount of
₱75,000.00 each. It was also ruled in Jugueta that when no
documentary evidence of burial or funeral expenses is presented in court, the
amount of ₱50,000.00 as temperate damages shall be awarded. In this case,
Victoria showed that she spent a total of ₱13,000.00 for the funeral expenses
of Lucio. In conformity with the jurisprudence in Ocampo v. People,85 the temperate damages of ₱50,000.00
shall likewise be awarded instead of the damages substantiated by the receipts.
In addition, interest at the rate of six percent (6%) per annum shall
be imposed on all monetary awards from date of finality of this decision until
fully paid.86
On the loss of earning capacity, it is noted that Victoria failed
to substantiate her claim that her husband was receiving a monthly income of
₱20,000.00. The Court reiterates its ruling that "for lost income due to
death, there must be unbiased proof of the deceased' average income.
Self-serving, hence unreliable statement, is not enough. "87
WHEREFORE, the appeal is DISMISSED. The
assailed Decision of the Court of Appeals in CA-G.R. CR-HC No. 01473 finding
the accusedappellant Rezor Juanillo Manzano guilty beyond reasonable doubt of
Murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED but with MODIFICATION as to the award of
damages to the heirs of Lucio Silava, as follows: civil indemnity of
₱75,000.00; moral damages of ₱75,000.00; exemplary damages of ₱75,000.00; and
temperate damages of ₱50,000.00. In addition, interest at the rate of six
percent (6%) per annum shall be imposed on all monetary awards
from the date of finality of this decision until fully paid.
SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
|
LUCAS P. BERSAMIN
Associate Justice
|
MARVIC M.V.F. LEONEN
Associate Justice
|
ALEXANDER G. GESMUNDO
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decisionhad 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
C E R T I F I C A T I O N
Pursuant to the Section 13, Article VIII of the 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.
ANTONIO T. CARPIO
Acting Chief Justice
Footnotes
1 Rollo, pp.
4-22. Penned by Associate Justice Ma. Luisa C. Quijano-Padilla and concurred in
by Associate Justices Ramon Paul L. Hernando and Marie Christine
Azcarraga-Jacob.
2 Records, pp. 236-249.
Penned by Judge Rudy P. Castrojas.
3 Id. at 1.
4 TSN, 7 March 2011,
pp. 4-9.
5 Id. at
9-17, 25-26 and 29.
6 Id. at 8,
10-11and14-15.
7 TSN, 14 June 2011,
pp. 15-17.
8 Id. at
17-23.
9 Id. at
23-27.
10 Records, pp. 50-51;
Exhs. "B to "B-3."
11 Id. at
52; Exh. "C."
12 Id. at
53-57; Exhs. "D" to "D-4."
13 TSN, 14 June2011, pp.
29-30; TSN, 9 August2011, p.3; TSN, 29November201 I, pp. 17-19.
14 Records, p.15.
15 Id. at
58-79, Exhs. "E" to "E-21."
16 TSN, 29 November
2011, pp.10-14.
17 Records, pp. 245-248.
18 Id. at
248.
19 Id. at
249.
20 Rollo, pp.
15-18.
21 ld. at 20-21.
22 Id. at
22.
23 CA rollo, pp.
21-22.
24 People v. Dayaday, G.R.
No. 213224, 16 January 2017.
25 People v.
Macaspac, G.R. No. 198954, 22 February 2017.
26 People v.
Defector, G.R. No. 200026, 4 October 2017.
27 People v.
Macaspac, supra note 25.
28 People v.
Labraque, G.R. No. 225065, 13 September 2017, citing People v.
Alberca, G.R. No. 217459, 7 June 2017.
29 People v. Aycardo, G.R.
No. 218114, 5 June 2017.
30 People v. Amar, G.R.
No. 223513, 5 July 2017.
31 TSN, 14 June 2011,
pp. 21-27.
32 CA rollo, pp.
27-28.
33 Id. at
28.
34 TSN, 14 June 2011,
pp. 23-24.
35 Ocampo v. People, 759
Phil. 423, 433 (2015).
36 People v. Amoe, G.R.
No. 216937, 5 June 2017.
37 G.R. No. 195021, 15
March 2017.
38 Article 11. Justifying
circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same degrees and those
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present,
and the further requisite, in case the revocation was given by the person
attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person defending be not
induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does not
act which causes damage to another, provided that the following requisites are
present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid
it;
Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
39 Velasquez v.
People, supra note 37.
40 Ocampo v. People, supra
note 35 at 431.
41 People v. Ramos, 715
Phil. 193, 204 (2013).
42 Belbis, Jr. v.
People, 698 Phil. 706, 720 (2012).
43 People v. Bosito, 750
Phil. 183, 193(2015).
44 Velasquez v.
People, supra note 37.
45 CA rollo, p.
29.
46 Velasquez v.
People, supra note 37.
47 People v. Dulin, 762
Phil. 24, 37 (2015), citing People v. Nugas, 677 Phil. 168,
177-178 (2011).
48 Records, pp. 64-68,
Exhs. "E-6," "E-7," "E-8," "E-9" and
"E-10."
49 Ocampo v. People, supra
note 35 at 432.
50 Belbis, Jr. v.
People, supra note 42 at 719.
51 231 Phil. 9 (1987).
52 Id. at
26; cited in CA rollo, pp. 29-30.
53 People v. Buenafe, G.R.
No. 212930, 3 August 2016, 799 SCRA 454, 463.
54 Id. at
463, citing People v. Ducabo, 560 Phil. 709, 723-724 (2007).
55 People v. Dulin, supra
note 47 at 36.
56 People v. Casas, 755
Phil. 210, 219 (2015).
57 Ocampo v. People, supra
note 35 at 433.
58 Records, p. 81, Exh.
"G."
59 CA rollo, p.
31.
60 Art. 248. Murder. -
Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion
perpetua, to death if committed with any of the following attendant
circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a railroad, fall of an
airship, or by means of motor vehicles, or with the use of any other means
involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse.1âwphi1 (As amended by R.A. No. 7659 entitled "An Act to Impose
the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the
Revised Penal Laws, as amended, Other Special Penal Laws, and for Other
Purposes.")
61 Art. 246. Parricide.
- Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall be
guilty of parricide and shall be punished by the penalty of reclusion
perpetua to death.
62 People v. Bugarin, G.R.
No. 224900, 15 March 2017.
63 People v.
Villanueva, G.R. No. 226475, 13 March 2017.
64 People v. Jugueta, G.R.
No. 202124, 5 April 2016. 788 SCRA 331, 348.
65 Article 249. Homicide. -
Any person who, not falling within the provisions of Article 246, shall kill
another without the attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide and be punished by
reclusion temporal.
66 Cirera v. People, 739
Phil. 25, 39 (2014).
67 People v. Sibbu, G.R.
No. 214757, 29 March 2017.
68 People v. Bugarin, supra
note 62.
69 People v.
Macaspac, supra note 25.
70 People v. Bugarin, supra
note 62.
71 Id.
72 People v.
Oloverio, 756 Phil. 435, 449 (20 I 5).
73 Cirera v. People, supra
note 66 at 28.
74 Id. at
45.
75 Id. at
39.
76 Escamilla v.
People, 705 Phil. 188, 196-197 (2013).
77 TSN, 14 June 2011, p.
8.
78 People v. Bosito, supra
note 43 at 193.
79 People v. Placer, 719
Phil. 268, 281-282 (2013).
80 Belbis, Jr. v.
People, supra note 42 at 724.
81 TSN, 8 March 2011, p.
11.
82 Belbis, Jr. v.
People, supra note 42 at 724.
83 Article 63. Rules
for the application of indivisible penalties. - In all cases in which
the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two
indivisible penalties, the following rules shall be observed in the application
thereof:
1.xxxx
2. When there are neither mitigating nor aggravating circumstances
and there is no aggravating circumstance, the lesser penalty shall be applied.
x x x x
84 Supra note
64.
85 Supra note
35 at 435.
86 People v. Jugueta, supra
note 64 at 388.
87 People v. Sanchez, 372
Phil. 129, 148 (1999).
The Lawphil Project - Arellano Law Foundation
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EN BANC
G.R. No. 101083
July 30, 1993
JUAN ANTONIO, ANNA
ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their
parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented
by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all
surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE
ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE
CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their
parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN,
MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their
parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented
by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN,
JR., in his capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the petitioners
dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically,
it touches on the issue of whether the said petitioners have a cause of action
to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which
was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court
(RTC), National Capital Judicial Region. The principal plaintiffs therein, now
the principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources. The
original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural Resources (DENR). His substitution
in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are
all citizens of the Republic of the Philippines, taxpayers, and entitled to the
full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but
are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn."4 Consequently, it is prayed for that judgment
be rendered:
. . . ordering defendant, his agents, representatives and
other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs
just and equitable under the premises."5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of thirty million
(30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of
fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the
distortion and disturbance of this balance as a consequence of deforestation
have resulted in a host of environmental tragedies, such as (a) water shortages
resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization
of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the
Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss
of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately
the size of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of
rivers and seabeds and consequential destruction of corals and other aquatic
life leading to a critical reduction in marine resource productivity, (g)
recurrent spells of drought as is presently experienced by the entire country,
(h) increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the
generation of electric power, and (k) the reduction of the earth's capacity to
process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise known as
the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial notice.
This notwithstanding, they expressed their intention to present expert
witnesses as well as documentary, photographic and film evidence in the course
of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four per cent (4.0%)
of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares
of virgin old-growth rainforests are left, barely 2.8% of the entire land mass
of the Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various corporations to cut
the aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered
is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about
200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays,
Sundays and holidays included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of deforestation to the
plaintiff minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great damage and
irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare and unique
natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust for the benefit
of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection by the State in
its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served upon defendant a
final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is
hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and extreme prejudice of
plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs, especially plaintiff
minors who may be left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the Philippine
Environmental Policy which, in pertinent part, states that it is the policy of
the State —
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable harmony with each
other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that
is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional policy of the State
to —
a. effect "a more equitable distribution of
opportunities, income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section
2, ibid);
c. "conserve and promote the nation's cultural heritage
and resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law
of humankind — the natural law — and violative of plaintiffs' right to
self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated hemorrhage of the
country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran,
Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely:
(1) the plaintiffs have no cause of action against him and (2) the issue raised
by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows
a clear and unmistakable cause of action, (2) the motion is dilatory and (3)
the action presents a justiciable question as it involves the defendant's abuse
of discretion.
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim — that the complaint states no cause of action against him
and that it raises a political question — sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of Court and
ask this Court to rescind and set aside the dismissal order on the ground that
the respondent Judge gravely abused his discretion in dismissing the action.
Again, the parents of the plaintiffs-minors not only represent their children,
but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective Memoranda after
the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains sufficient allegations
concerning their right to a sound environment based on Articles 19, 20 and 21
of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No.
192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151
(Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful
ecology, the concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation embodied
in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in granting Timber License
Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's
non-impairment clause, petitioners maintain that the same does not apply in
this case because TLAs are not contracts. They likewise submit that even if
TLAs may be considered protected by the said clause, it is well settled that
they may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners
failed to allege in their complaint a specific legal right violated by the
respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to
the "protection by the state in its capacity as parens patriae."
Such allegations, according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a bill that would ban
logging totally.
As to the matter of the cancellation of the TLAs, respondents
submit that the same cannot be done by the State without due process of law.
Once issued, a TLA remains effective for a certain period of time — usually for
twenty-five (25) years. During its effectivity, the same can neither be revised
nor cancelled unless the holder has been found, after due notice and hearing,
to have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the requirements
of due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No. 90-777 as a class
suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if
not totally impossible, to bring all of them before the court. We likewise
declare that the plaintiffs therein are numerous and representative enough to
ensure the full protection of all concerned interests. Hence, all the requisites
for the filing of a valid class suit under Section 12, Rule 3 of the Revised
Rules of Court are present both in the said civil case and in the instant
petition, the latter being but an incident to the former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations,
file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in
its entirety.9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably accessible
to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection of that
right for the generations to come.
The locus standi of the petitioners having
thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues raised and arguments
adduced by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued with
grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For although we believe
that plaintiffs have but the noblest of all intentions, it (sic) fell
short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking
to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that
the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter of public
policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3)
co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements
in the country and to cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the
plaintiffs failed to allege with sufficient definiteness a specific legal right
involved or a specific legal wrong committed, and that the complaint is replete
with vague assumptions and conclusions based on unverified data. A reading of
the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right
— the right to a balanced and healthful ecology which, for the first time in
our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies and not under the
Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not
even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not be too far when all
else would be lost not only for the present generation, but also for those to
come — generations which stand to inherit nothing but parched earth incapable
of sustaining life.
The right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the environment. During the
debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in
question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty of not impairing
the same and, therefore, sanctions may be provided for impairment of
environmental balance. 12
The said right implies, among many other things, the
judicious management and conservation of the country's forests.
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the other related
provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated
on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that
the Department of Environment and Natural Resources "shall be the primary
government agency responsible for the conservation, management, development and
proper use of the country's environment and natural resources, specifically
forest and grazing lands, mineral, resources, including those in reservation
and watershed areas, and lands of the public domain, as well as the licensing
and regulation of all natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived therefrom for the welfare
of the present and future generations of Filipinos." Section 3 thereof
makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby
declared the policy of the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's forest, mineral, land,
off-shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of the
different segments of the population to the development and the use of the country's
natural resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize and apply
a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title
XIV, Book IV of the Administrative Code of 1987,15 specifically in Section 1 thereof which
reads:
Sec. 1. Declaration of Policy. — (1) The State
shall ensure, for the benefit of the Filipino people, the full exploration and development
as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment and the objective of making the
exploration, development and utilization of such natural resources equitably
accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost implications
relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of
maintaining a sound ecological balance and protecting and enhancing the quality
of the environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of
Environment and Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have
set the objectives which will serve as the bases for policy formulation, and
have defined the powers and functions of the DENR.
It may, however, be recalled that even before the
ratification of the 1987 Constitution, specific statutes already paid special
attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy)
and P.D. No. 1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop,
maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality that is conducive
to a life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave
flesh to the said policy.
Thus, the right of the petitioners (and all those they represent)
to a balanced and healthful ecology is as clear as the DENR's duty — under its
mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same gives rise to a
cause of action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the
legal right or rights of the other; and its essential elements are legal right
of the plaintiff, correlative obligation of the defendant, and act or omission
of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to
dismiss based on the ground that the complaint fails to state a cause of
action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint
itself. No other matter should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in such a case is:
admitting such alleged facts to be true, may the court render a valid judgment
in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the
judiciary should "exercise the utmost care and circumspection in passing
upon a motion to dismiss on the ground of the absence thereof [cause of action]
lest, by its failure to manifest a correct appreciation of the facts alleged
and deemed hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal order. The
law itself stands in disrepute."
After careful examination of the petitioners' complaint, We
find the statements under the introductory affirmative allegations, as well as
the specific averments under the sub-heading CAUSE OF ACTION, to be adequate
enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of
the TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to
raise a political question. Policy formulation or determination by the
executive or legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable
shield that protects executive and legislative actions from judicial inquiry or
review. The second paragraph of section 1, Article VIII of the Constitution
states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political
Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this
Court, noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we would
still not be precluded from revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found in the Constitution.
The court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed,
if not shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his motion to
dismiss the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted benefits
and advantages to the timber license holders because he would have forever
bound the Government to strictly respect the said licenses according to their
terms and conditions regardless of changes in policy and the demands of public
interest and welfare. He was aware that as correctly pointed out by the
petitioners, into every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest
so requires, the President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege granted herein . .
.
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property or a property
right protested by the due process clause of the Constitution. In Tan
vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can
be validly withdrawn whenever dictated by public interest or public welfare as in
this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right;
nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of
license does not create irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael,
Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. And
it can hardly be gainsaid that they merely evidence a privilege granted by the
State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products
therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment
clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall
be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the
same are contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because by its very nature and
purpose, such as law could have only been passed in the exercise of the police
power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the
general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public health, moral, safety
and welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the
State, in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia
vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and not of public concern.
The general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for government cannot
exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the police
power of the state. 31
Finally, it is difficult to imagine, as the trial court did,
how the non-impairment clause could apply with respect to the prayer to enjoin
the respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition
is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO,
J., concurring
I join in the result reached by my distinguished brother in
the Court, Davide, Jr., J., in this case which, to my mind, is one
of the most important cases decided by this Court in the last few years. The
seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the
environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore
sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this suit
(Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit.
I understand locus standi to refer to the legal interest which
a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved — membership in
this "class" appears to embrace everyone living in
the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is
vested with the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of action in
the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities
operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably
is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged
and focused upon "one specific fundamental legal right — the right to a
balanced and healthful ecology" (Decision, p. 14). There is no question
that "the right to a balanced and healthful ecology" is
"fundamental" and that, accordingly, it has been "constitutionalized."
But although it is fundamental in character, I suggest, with very great
respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion
language more comprehensive in scope and generalized in character than a right
to "a balanced and healthful ecology." The list of particular claims
which can be subsumed under this rubic appears to be entirely open-ended:
prevention and control of emission of toxic fumes and smoke from factories and
motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land,
streets and thoroughfares; failure to rehabilitate land after strip-mining or
open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The
other statements pointed out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative
Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy,
as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a compendious
collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause,
Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines
and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to
contemplate action on the part of private persons who are
beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action
as anchored on a legal right comprised in the constitutional statements above
noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable
even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in
nature even to be hinted at here.
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief prayed for. To my
mind, the Court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to demonstrate,
instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two
(2) reasons. One is that unless the legal right claimed to have been violated
or disregarded is given specification in operational terms, defendants may well
be unable to defend themselves intelligently and effectively; in other words,
there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy
making departments — the legislative and executive departments — must be given
a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly
insists that the timber companies, whose concession agreements or TLA's petitioners
demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to
dispute the existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between petitioners' specific
legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness
of the remedy or remedies demanded by petitioners, under all the circumstances
which exist.
I vote to grant the Petition for Certiorari because
the protection of the environment, including the forest cover of our territory,
is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.
# Separate
Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in
the Court, Davide, Jr., J., in this case which, to my mind, is one
of the most important cases decided by this Court in the last few years. The
seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the
environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore
sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this suit
(Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit.
I understand locus standi to refer to the legal interest which
a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved — membership in
this "class" appears to embrace everyone living in
the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the
course of action petitioners seek to require public respondents to take, is
vested with the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of action in
the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities
operating in the field or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably
is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged
and focused upon "one specific fundamental legal right — the right to a
balanced and healthful ecology" (Decision, p. 14). There is no question
that "the right to a balanced and healthful ecology" is
"fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized as
"specific," without doing excessive violence to language. It is in
fact very difficult to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this
rubic appears to be entirely open-ended: prevention and control of emission of
toxic fumes and smoke from factories and motor vehicles; of discharge of oil,
chemical effluents, garbage and raw sewage into rivers, inland and coastal waters
by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure
to rehabilitate land after strip-mining or open-pit mining; kaingin or
slash-and-burn farming; destruction of fisheries, coral reefs and other living
sea resources through the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain species of fauna and
flora; and so on. The other statements pointed out by the Court: Section 3,
Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of
the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear
to be formulations of policy, as general and abstract as the
constitutional statements of basic policy in Article II, Section 16 ("the
right — to a balanced and healthful ecology") and 15 ("the right to
health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a compendious
collection of more "specific environment management policies" and
"environment quality standards" (fourth "Whereas" clause,
Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines
and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to
contemplate action on the part of private persons who are
beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action
as anchored on a legal right comprised in the constitutional statements above
noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable
even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in
nature even to be hinted at here.
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief prayed for. To my
mind, the Court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so to demonstrate,
instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be
unable to defend themselves intelligently and effectively; in other words,
there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will
be, it is respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy
making departments — the legislative and executive departments — must be given
a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly
insists that the timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must be impleaded in the
proceedings below. It might be asked that, if petitioners' entitlement to the
relief demanded is not dependent upon proof of breach by the
timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will
those companies litigate about? The answer I suggest is that they may seek to
dispute the existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between petitioners' specific
legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness
of the remedy or remedies demanded by petitioners, under all the circumstances
which exist.
I vote to grant the Petition for Certiorari because
the protection of the environment, including the forest cover of our territory,
is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.
6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary, unabridged,
1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV of
the Administrative Code of 1987, E.O. No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the National
Economy and Patrimony.
14 The Reorganization Act of the Department of Environment
and Natural Resources.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947];
Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951];
Remitere vs. Vda. de Yulo, 16 SCRA 251 [1966]; Caseñas vs. Rosales, 19 SCRA 462
[1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204
SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968];
Virata vs. Sandiganbayn, supra; Madrona vs. Rosal, supra.
21 39 SCRA 473, 479 [1971].
22 1991 ed., 226-227.
23 180 SCRA 496, 501-502 [1989]. See also,
Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452
[1990]; Llamas vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon
Committee, 203 SCRA 767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].
27 Article III, 1987 Constitution.
28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster
Wheeler Corp. supra.; Phil. American Life Insurance Co. vs. Auditor
General, supra.; Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano
vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs. National
Housing Authority, 156 SCRA 623 [1987].
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
SECOND DIVISION
December 6, 2017
G.R. No. 216871
OFFICE OF THE OMBUDSMAN, Petitioner
vs.
MAYOR JULIUS CESAR VERGARA,
Respondent
D E C I S I O N
PERALTA, J.:
For this Court’s consideration is the Petition for Review on Certiorari under
Rule 45 of the Rules of Court dated April 6, 2015 of petitioner Office of the
Ombudsman that seeks to reverse and set aside the Decision1 dated
May 28, 2014 of the Court of Appeals (CA) in CA-G.R. SP No. 125841 rendering
the penalty imposed in the Decision2 dated
February 7, 2006 and Review Order3 dated
June 29, 2012 of petitioner Office of the Ombudsman against respondent Mayor
Julius Cesar Vergara (Mayor Vergara) for violation of Section
5 (a) of Republic Act (R.A.) No. 6713 inapplicable due to the
doctrine of condonation.
The facts follow.
A complaint was filed by Bonifacio G. Garcia, on June 21, 2005
before petitioner's Office of the Environmental Ombudsman against respondent
Mayor Julius Cesar Vergara and then Vice-Mayor Raul Mendoza (Vice-Mayor
Mendoza). Respondent Mayor Vergara was then serving as Mayor of
Cabanatuan City for his third term (2004-2007).
According to the complainant, respondent Vergara and then ViceMayor
Mendoza maintained for quite a long time an open burning dumpsite located at
the boundaries of Barangays San Isidro and Valle Cruz in Cabanatuan City, which
has long been overdue for closure and rehabilitation. He claimed that the
dumpsite is now a four-storey high mountain of mixed garbage exposing the
residents of at least eighty-seven (87) barangays of
Cabanatuan City to all toxic solid wastes. He further alleged that respondent
Mayor Vergara and then Vice-Mayor Mendoza ordered and permitted the littering
and dumping of the solid wastes in the said area causing immeasurable havoc to
the health of the residents of Cabanatuan and that despite the enactment of
R.A. 9003, respondent Mayor Vergara and then Vice-Mayor Mendoza allowed and
permitted the collection of non-segregated and unsorted wastes. It was also
alleged that respondent Mayor Vergara and then Vice-Mayor Mendoza ignored the
complaints from local residents and the letters from the authorities of the
Department of Environment and Natural Resources (DENR) and
from the Commissioner of the National Solid Waste Management ordering them to
comply with the provisions of the said law.
In their Joint Counter-Affidavit,4 both
respondent Mayor Vergara and then Vice-Mayor Mendoza denied that they wilfully
and grossly neglected the performance of their duties pursuant to R.A. 9003.
They claimed that since 1999, they were already aware about the growing problem
of garbage collection in Cabanatuan City. They also contended that even before
the enactment of RA 9003, they have already prepared a master plan for the
transfer of the city dumpsite in Barangay Valle into an
agreement with Lacto Asia Pacific Corporation for the establishment of
Materials Recovery Facility at the motorpool compound of Cabanatuan City as a
permanent solution to the garbage problem.
Respondent Mayor Vergara was found guilty by Graft Investigation
and Prosecution Officer II Ismaela B. Boco for violation of Section 5 (a) of
R.A. No. 6713, or the Code of Conduct and Ethical Standards for Public
Officials and Employees which provides that:
Section 5. Duties of Public Officials and Employees. -
In the performance of their duties, all public officials and employees are
under obligation to:
(a) Act promptly on letter and requests - All public officials and
employees shall, within fifteen (15) working days from receipt thereof, respond
to letters, telegrams or other means of communications sent by the public. The
reply must contain the action taken on the request.
As such, petitioner imposed a penalty on respondent which reads as
follows:
x x x Accordingly, he is meted the penalty of Suspension for six
(6) months from the government service pursuant to Section 10, Rule III of the
Administrative Order No. 07, this Office, in relation to Section 25 of Republic
Act No. 6770.
It is further recommended that both respondents, JULIUS CESAR
VERGARA and RAUL P. MENDOZA be administratively liable for NEGLECT OF DUTY for
failing to implement RA 9003. Accordingly, each of them is meted the penalty of
Suspension for six (6) months from the government service pursuant to Section
10, Rule III of the Administrative Order No. 07, this Office, in relation to
Section 25 of Republic Act No. 6770.5
Respondent filed a motion for reconsideration contending that the
assailed decision that meted him the penalty of suspension for six (6) months
from government service cannot be implemented or enforced as the same runs
counter to the established doctrine of condonation, since he was reelected as
Mayor of Cabanatuan City on May 10, 2010.
The petitioner, in its Review Order dated June 29, 2012, affirmed
the Decision dated February 7, 2006 but modified the penalty imposed, thus:
PREMISES CONSIDERED, the Decision dated 7 February 2006 is hereby AFFIRMED with modification. The
penalty imposed on respondent-movant Julius Cesar V. Vergara for failure to act
promptly on letters and requests is reduced from six-month suspension to
reprimand in light of the foregoing disquisition.
SO ORDERED.6
Aggrieved, respondent filed a petition for review with the CA.
Respondent then filed a Motion and Manifestation dated May 16,
2013, which the CA noted, alleging that his re-election as Mayor of Cabanatuan
City in the May 2010 elections eliminated the break from his service as Mayor
and, thus, qualified his case for the application of the doctrine of
condonation.
The CA, on May 28, 2014, granted respondent's petition. The CA
ruled that there is no reason for it to reverse the findings of the Office of
the Ombudsman, however, the appellate court held that respondent may no longer
be held administratively liable for misconduct committed during his previous
term based on the doctrine of condonation, thus:
x x x x
Contrary to the ratiocination of the Office of the Ombudsman, the
application of the doctrine does not require that the official must be
reelected to the same position in the immediately succeeding election. The
Supreme Court's rulings on the matter do not distinguish the precise timing or
period when the misconduct was committed, reckoned from the date of the
official's reelection, except that it must be prior to said date. Thus, when
the law does not distinguish, the courts must not distinguish.
FOR THESE REASONS, the petition is GRANTED.
SO ORDERED.7
Petitioner filed a motion for partial reconsideration contending
that the re-election referred to in the doctrine of condonation refers to the
immediately succeeding election. The CA, in its Resolution dated February 5,
2015, denied the motion for reconsideration.
Hence, the present petition with the following grounds:
I.
THE COURT OF APPEALS ERRED WHEN IT HELD THAT RESPONDENT MAY NO
LONGER BE HELD ADMINISTRATIVELY LIABLE FOR MISCONDUCT COMMITTED DURING HIS
PREVIOUS TERM OF OFFICE BASED ON THE DOCTRINE OF CONDON A TION.
II.
ASSUMING ARGUENDO THAT THE DOCTRINE OF CONDON A TI
ON IS APPLICABLE TO THE CASE AT BAR, PETITIONER RESPECTFULLY BESEECHES THIS
HONORABLE COURT TO REEXAMINE SAID DOCTRINE IN LIGHT OF THE 1987 CONSTITUTION'S
MANDATE THAT PUBLIC OFFICE IS A PUBLIC TRUST.8
According to petitioner, the term re-election, as applied in the
doctrine of condonation, is used to refer to an election immediately preceding
a term of office and it is not used to refer to a subsequent re-election
following the three-term limit break considering that it is an incumbent
official serving the three-term limit break who is said to be seeking
re-election. It further argues that the factual circumstances of respondent do
not warrant the application of the doctrine of condonation considering that the
same doctrine is applied only to cases where the subject public officials were
elected to the same position in the immediately succeeding election.
Petitioner, likewise, contends that assuming that the doctrine of condonation
is applicable in this case, such doctrine contradicts the 1987 Constitution and
the present public policy.
In his Comment dated September 23, 2015, respondent insists that he
did not violate any law and that if he is indeed guilty of violating R.A. 9003,
the doctrine of condonation must be applied by virtue of his re-election.
The petition lacks merit.
Basically, this Court is presented with the single issue of whether
or not respondent is entitled to the doctrine of condonation.
In November 10, 2015, this Court, in Conchita Carpio
Morales v. CA and Jejomar Binay, Jr., 9 extensively
discussed the doctrine of condonation and ruled that such doctrine has no legal
authority in this jurisdiction. As held in the said the decision:
The foundation of our entire legal system is the Constitution. It
is the supreme law of the land; 10 thus, the unbending rule is that every
statute should be read in light of the Constitution.11 Likewise,
the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics
attendant to the operation of the political branches of government.12
As earlier intimated, Pascual was a decision promulgated in 1959.
Therefore, it was decided within the context of the 1935 Constitution which was
silent with respect to public accountability, or of the nature of public office
being a public trust. The provision in the 1935 Constitution that comes closest
in dealing with public office is Section 2, Article II which states that
"[t]he defense of the State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law torender personal
military or civil service."13 Perhaps
owing to the 1935 Constitution's silence on public accountability, and
considering the dearth of jurisprudential rulings on the matter, as well as the
variance in the policy considerations, there was no glaring objection
confronting the Pascual Court in adopting the condonation doctrine that
originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing
with public officers underwent a significant change. The new charter introduced
an entire article on accountability of public officers, found in Article XIII.
Section 1 thereof positively recognized, acknowledged, and declared that
"[p]ublic office is a public trust." Accordingly, "[p]ublic
officers and employees shall serve with the highest degree of responsibility,
integrity, loyalty and efficiency, and shall remain accountable to the
people."
After the turbulent decades of Martial Law rule, the Filipino
People have framed and adopted the 1987 Constitution, which sets forth in the
Declaration of Principles and State Policies in Article II that "[t]he
State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."14 Learning
how unbridled power could corrupt public servants under the regime of a
dictator, the Framers put primacy on the integrity of the public service by
declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been
first proclaimed in the 1973 Constitution by commanding public officers to be
accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency and act with
patriotism and justice, and lead modest lives.
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, A1iicle XI of the 1987
Constitution, which states that "public office is a public trust," is
an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people's trust. The notion of
a public trust connotes accountability x x x.15
The same mandate is found in the Revised Administrative Code under
the section of the Civil Service Commission,16 and
also, in the Code of Conduct and Ethical Standards for Public Officials and
Employees.17
For local elective officials like Binay, Jr., the grounds to
discipline, suspend or remove an elective local official from office are stated
in Section 60 of Republic Act No. 7160,18 otherwise
known as the "Local Government Code of 1991" (LGC), which was
approved on October 10 1991, and took effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local
official may be disciplined, suspended, or removed from office on any of the r
following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence,
or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an
offense punishable by at least prision mayor;
(e) Abuse of authority;
(t) Unauthorized absence for fifteen (15) consecutive working days,
except in the case of members of the sangguniang panlalawigan, sangguniang
panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
Related to this provision is Section 40 (b) of the LGC which states
that those removed from office as a result of an administrative case shall be
disqualified from running for any elective local position:
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
x x x x
(b) Those removed from office as a result of an administrative
case;
x x x x
In the same sense, Section 52 (a) of the RRA CCS provides that the
penalty of dismissal from service carries the accessory penalty of perpetual
disqualification from holding public office:
Section 52. - Administrative Disabilities Inherent m Certain
Penalties. -
The penalty of dismissal shall carry with it cancellation of
eligibility, forfeiture of retirement benefits, perpetual disqualification from
holding public office, and bar from taking the civil service examinations.
In contrast, Section 66 (b) of the LGC states that the penalty of
suspension shall not exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision only
pertains to the duration of the penalty and its effect on the official’s
candidacy. Nothing therein states that the administrative liability therefor is
extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. – x x x.
x x x x
(b) The penalty of suspension shall not exceed the unexpired term
of the respondent or a period of six (6) months for every administrative
offense, nor shall said penalty be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications required for the office.
Reading the 1987 Constitution together with the above-cited legal
provisions now leads this Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and
the corollary requirement of accountability to the people at all times, as
mandated under the 1987 Constitution, is plainly inconsistent with the idea
that an elective local official’s administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected
to a second term of office, or even another elective post. Election is not a
mode of condoning an administrative offense, and there is simply no
constitutional or statutory basis in our jurisdiction to support the notion
that an official elected for a different term is folly absolved of any
administrative liability arising from an offense done during a prior term. In this
jurisdiction, liability arising from administrative offenses may be condoned by
the President in light of Section 19, Article VII of the 1987 Constitution
which was interpreted in Llamas v. Orbos19 to
apply to administrative offenses:
x x x The Constitution does not distinguish between which cases
executive clemency may be exercised by the President, with the sole exclusion
of impeachment cases. By the same token, if executive clemency may be exercised
only in criminal cases, it would indeed be unnecessary to provide for the
exclusion of impeachment cases from the coverage of Article VII, Section 19 of
the Constitution. Following petitioner's proposed interpretation, cases of
impeachment are automatically excluded inasmuch as the same do not necessarily
involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing,
reason why the President cannot grant executive clemency in administrative
cases. It is Our considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal cases,
with much more reason can she grant executive clemency in administrative cases,
which are clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the LGC that the
grounds for discipline enumerated therein cannot anymore be invoked against an
elective local official to hold him administratively liable once he is
re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation
since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to
a direct disqualification from running for such post. In similar regard,
Section 52 (a) of the RRACCS imposes a penalty of perpetual disqualification
from holding public office as an accessory to the penalty of dismissal from
service.
To compare, some of the cases adopted in Pascual were decided by US
State jurisdictions wherein the doctrine of condonation of administrative
liability was supported by either a constitutional or statutory provision
stating, in effect, that an officer cannot be removed by a misconduct committed
during a previous term,20 or
that the disqualification to hold the office does not extend beyond the term
inwhich the official's delinquency occurred.21 In
one case,22 the
absence of a provision against the re-election of an officer removed - unlike
Section 40 (b) of the LGC-was the justification behind condonation. In another
casc,23 it
was deemed that condonation through re-election was a policy under their
constitution - which adoption in this jurisdiction runs counter to our present
Constitution's requirements on public accountability. There was even one case
where the doctrine of condonation was not adjudicated upon but only invoked by
a party as a ground;24 while
in another case, which was not reported in full in the official series, the
crux of the disposition was that the evidence of a prior irregularity in no way
pertained to the charge at issue and therefore, was deemed to be incompetent.25 Hence,
owing to either their variance or inapplicability, none of these cases can be
used as basis for the continued adoption of the condonation doctrine under our
existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the
penalty of suspension beyond the unexpired portion of the elective local official's
prior term, and likewise allows said official to still run for reelection This
treatment is similar to People ex rel Bagshaw v. Thompson26 and Montgomery
v. Novell27 both
cited in Pascual, wherein it was ruled that an officer cannot be suspended for
a misconduct committed during a prior term. However, as previously stated,
nothing in Section 66 (b) states that the elective local official's
administrative liability is extinguished by the fact of re-election. Thus, at
all events, no legal provision actually supports the theory that the liability
is condoned.
Relatedly it should be clarified that there is no truth in
Pascual’s postulation that the courts would be depriving the electorate of
their right to elect their officers if condonation were not to be sanctioned.
In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this
jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that
every democratic and republican state has an inherent regime of condonation. If
condonation of an elective official’s administrative liability would perhaps,
be allowed in this jurisdiction, then the same should have been provided by law
under our governing legal mechanisms. May it be at the time of Pascual or at
present, by no means has it been shown that such a law, whether in a constitutional
or statutory provision, exists. Therefore, inferring from this manifest
absence, it cannot be said that the electorate’s will has been abdicated.
Equally infirm is Pascual’s proposition that the electorate, when
reelecting a local official, are assumed to have done so with knowledge of his
life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.28 Besides,
it is contrary to human experience that the electorate would have full
knowledge of a public official's misdeeds. The Ombudsman correctly points out
the reality that most corrupt acts by public officers are shrouded in secrecy,
and concealed from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate when they
cast their votes.29 At
a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an
act that is unknown. As observed in Walsh v. City Council of Trenton30 decided
by the New Jersey Supreme Court:
Many of the cases holding that re-election of a public official
prevents his removal for acts done in a preceding term of office are reasoned
out on the theory of condonation.1âwphi1 We cannot subscribe to that theory because condonation,
implying as it does forgiveness, connotes knowledge and in the absence of
knowledge there can be no condonation. One cannot forgive something of which
one has no knowledge.
That being said, this Court simply finds no legal authority to
sustain the condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way back in
1959 and thus, out of touch from - and now rendered obsolete by - the current
legal regime. In consequence, it is high time for this Court to abandon the
condonation doctrine that originated from Pascual, and affirmed in the cases
following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.
The above ruling, however, was explicit in its pronouncement that
the abandonment of the doctrine of condonation is prospective in application,
hence, the same doctrine is still applicable in cases that transpired prior to
the ruling of this Court in Carpio Morales v. CA and Jejomar Binay, Jr. 31 Thus:
It should, however, be clarified that this Court's abandonment of
the condonation doctrine should be prospective in application for the reason
that judicial decisions applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of the Philippines.32 Unto
this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained
in De Castro v. Judicial Bar Council.33
Judicial decisions assume the same authority as a statute itself
and, until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria that must control the actuations, not only of
those called upon to abide by them, but also of those duty-bound to enforce
obedience to them.34
Hence, while the future may ultimately uncover a doctrine’s error,
it should be, as a general rule, recognized as "good law" prior to
its abandonment. Consequently, the people’s reliance thereupon should be
respected. The landmark case on this matter is People v. Jabinal,35 wherein
it was ruled:
[W]hen a doctrine of this Court is overruled and a different view
is adopted, the new doctrine should be applied prospectively, and should not
apply to parties who had relied on the old doctrine and acted on the faith
thereof.
Later, in Spouses Benzonan v. CA,36 it
was further elaborated:
[Pursuant to Article 8 of the Civil Code "judicial decisions
applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines." But while our decisions form part of the
law of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary
is provided." This is expressed in the familiar legal maxim lex prospicit,
non respicit, the law looks forward not backward. The rationale against retroactivity
is easy to perceive. The retroactive application of a law usually divests
rights that have already become vested or impairs the obligations of contract
and hence, is unconstitutional.37
Indeed, the lessons of history teach us that institutions can
greatly benefit from hindsight and rectify its ensuing course.1âwphi1 Thus, while it is truly perplexing to think that a doctrine
which is barren of legal anchorage was able to endure in our jurisprudence for
a considerable length of time, this Court, under a new membership, takes up the
cudgels and now abandons the condonation doctrine.
Considering that the present case was instituted prior to the
abovecited ruling of this Court, the doctrine of condonation may still be
applied.
It is the contention of the petitioner that the doctrine of
condonation cannot be applied in this case, since there was a gap in the
re-election of the respondent. It must be remembered that the complaint against
respondent was filed on June 21, 2005, or during the latter's third term as
Mayor (2004- 2007) and was only re-elected as Mayor in 2010. According to
petitioner, for the doctrine to apply, the respondent should have been
re-elected in the same position in the immediately succeeding election.
This Court finds petitioner's contention unmeritorious.
The application of the doctrine does not require that the official
must be re-elected to the same position in the immediately succeeding election.
In Giron v. Ochoa,38 the
Court recognized that the doctrine can be applied to a public officer who was
elected to a different position provided that it is shown that the body politic
electing the person to another office is the same. Thus, the Court ruled:
On this issue, considering the ratio decidendi behind
the doctrine, the Court agrees with the interpretation of the administrative
tribunalsbelow that the condonation doctrine applies to a public official
elected to another office. The underlying theory is that each term is separate
from other terms. Thus, in Carpio-Morales, the basic considerations are the
following: first, the penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate and distinct; second,
an elective official's re-election serves as a condonation of previous
misconduct, thereby cutting the right to remove him therefor; and third, courts
may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers. In this case, it is
a given fact that the body politic, who elected him to another office, was the
same.
From the above ruling of this Court, it is apparent that the most
important consideration in the doctrine of condonation is the fact that the
misconduct was done on a prior term and that the subject public official was
eventually re-elected by the same body politic. It is inconsequential whether
the said re-election be on another public office or on an election year that is
not immediately succeeding the last, as long as the electorate that re-elected
the public official be the same. In this case, the respondent was re-elected as
mayor by the same electorate that voted for him when the violation was
committed. As such, the doctrine of condonation is applied and the CA did not
err in so ruling.
WHEREFORE, Petition for Review on Certiorari under Rule
45 of the Rules of Court dated April 6, 2015 of petitioner Office of the
Ombudsman is DENIED. Consequently,
the Decision dated May 28, 2014 of the Court of Appeals in CA-G.R. SP No.
125841 is AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
|
ESTELA M. PERLAS-BERNABE
Associate Justice
|
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice
|
ANDRES B. REYES, JR.
Associate Justice
A T T E S T A T I O N
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
Pursuant to the Section 13, Article VIII of the 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
Footnotes
1 Penned by Associate Justice Mario V. Lopez, with the
concurrence of Associate Justices Jose C. Reyes, Jr. and Socorro B.
lnting; rollo, pp. 37-43.
2 Rollo,pp.69-75.
3 Id. at 82-85.
4 Id. at 62-68.
5 Id. at 74.
6 Id. at 85.
7 Id. at 42-43.
8 Id. at 20.
9 G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431,
540-542.
10 Chavez v. Judicial and Bar Council, 691 Phil.
173, 208 (2012).
11 Teehankee v. Rovira, 75 Phil. 634, 646 (1945),
citing 11 Am. Jur., Constitutional Law, Section 96.
12 Philippine Constitution Association v. Enriquez, 305
Phil. 546, 566 (1994).
13 See Silos, Miguel U., A Re-examination of the
Doctrine of Condonation of Public Officers, 84, Phil. LJ 22, 69
(2009), pp. 26-27.
14 Section 27, Article II.
15 Belgica v. Ochoa, 721 Phil. 416, 556 (2013),
citing Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic
of the Philippines: A Commentary, 2003 Ed., p. 1108.
16 Section I. Declaration of Policy. - The State shall insure
and promote the Constitutional mandate that appointments in the Civil Service
shall be made only according to merit and fitness; that the Civil Service
Commission, as the central personnel agency of the Government shall establish a
career service, adopt measures to promote morale, efficiency, integrity,
responsiveness, and courtesy in the civil service, strengthen the merit and
rewards system, integrate all human resources development programs for all
levels and ranks, and institutionalize a management climate conducive to public
accountability; that public office is a public trust and public officers and
employees must at all times be accountable to the people; and that personnel
functions shall be decentralized, delegating the corresponding authority to the
departments, offices and agencies where such functions can be effectively
performed. (Section 1, Book V, Title 1, subtitle A of the Administrative Code
of 1987). (Emphasis supplied)
17 Section 2. Declaration of Policies. - It is the policy of the
State to promote a high standard of ethics in public service. Public officials and employees shall at all
times be accountable to the people and shall discharge their duties with utmost
responsibility, integrity, competence, and loyalty, act with patriotism and
justice, lead modest lives, and uphold public interest over personal interest. See
Section 2, RA 6713 (approved on February 20, 1989). (Emphasis supplied)
18 Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE
OF 1991" (approved on October 10 1991).
19 279 Phil. 920, 937 (1991)
20 In Fudula’s Petition (297 Pa. 364; 147 A. 67
[1929]), the Supreme Court of Pennsylvania cited(a) 29 Cyc. 1410 which states:
"Where removal may be made for cause only, the cause must have occurred
during the present term of the officer. Misconduct prior to the present term
even during a preceding term will not justify a removal": and (b) "x
x x Penal Code [Cal.], paragraph 772, providing for the removal of officers for
violation of duty, which states "a sheriff cannot be removed from
office, while serving his second term, for offenses committed during his first
term." In Board of Commissioners of Kingfisher County v.
Shutler (139 Okla. 52; 281 P. 222 [1929)), the Supreme Court of
Oklahoma held that "[u]nder section 2405, C. 0. S. 1921, the only judgment
a court can render on an officer being convicted of malfeasance or misfeasance
in office is removal from office and an officer cannot be removed from
office under said section for acts committed by him while holding the same
office in a previous term."
21 In State v. Blake (I38 Okla. 241; 280
P. 833 [1929]), the Supreme Court of Oklahoma cited Stale ex rel. Hill,
County Attorney, v. Henschel, 175 P. 393, wherein it was said:
"Under the Ouster Law (section 7603 of the General Statutes of 1915-Code
Civ. Proc. 686a-), a public officer who is guilty of willful misconduct in
office forfeits his right to hold the office for the term of his election or
appointment; but the disqualification to hold the office does not extend beyond
the term in which his official delinquency occurred."
22 In Rice v. State (204 Ark. 236; 161 S. W.2d
401 [1942]), the Supreme Court of Arkansas cited (a) Jacobs v. Parham, 175
Ark. 86,298 S.W. 483, which quoted a headnote, that "Under Crawford Moses'
Dig., [(i.e., a digest of statutes in the jurisdiction of
Arkansas)] 10335, 10336, a public officer is not subject to removal from office
because of acts done prior to his present term of office in view of Const.,
art. 7, 27, containing no provision against re-election of officer removed for
any of the reasons named therein." 23 In State
ex rel. Brickell v. Hasty (184 Ala. 121; 63 So. 559 [1913]), the
Supreme Court of Alabama held: "x x x If an officer is impeached and
removed, there is nothing to prevent his being elected to the identical office
from which he was removed for a subsequent term, and, this being true, are
election to the office would operate as a condonation under the Constitution of
the officer's conduct during the previous term, to the extent of cutting off
the right to remove him from subsequent term for said conduct during the
previous term. It seems to be the policy of our Constitution to make each term
independent of the other, and to disassociate the conduct under one term from
the qualification or right to fill another term, at least, so far as the same
may apply to impeachment proceedings, and as distinguished from the right to
indict and convict an offending official."
24 In State Ex Rel. V Ward (163 Tenn. 265; 43
S.W.2d. 217 [1931]), decided by the Supreme Court of Tennessee, Knoxville, it
appears to be erroneously relied upon in Pascual, since the
proposition "[t]hat the Acts alleged in paragraph 4 of the petition
involved contracts made by defendant prior to his present term for which he
cannot now be removed from office" was not a court ruling but an argument
raised by the defendant in his demurrer.
25 In Conant v. Grosan (6 N.Y.S.R. 322 [1887]),
which was cited in Newman v. Strobel (236 A.O. 371; 259 N.Y.S.
402 [1932]; decided by the Supreme Court of New York, Appellate Division)
reads: "Our attention is called to Conant v. Grogan (6
N.Y. St. Repr. 322; 43 Hun, 637) and Matter of King (25 N.Y.
St. Repr. 792; 53 Hun, 631), both of which decisions are of the late General
Term, and neither of which is reported in full in the official series. While
there are expressions in each opinion which at first blush might seem to uphold
respondent’s theory, an examination of the cases discloses the fact that the
charge against each official related to acts performed during his then term of
office, and evidence of some prior irregularity was offered which in no way
pertained to the charge in issue. It was properly held that such evidence was
incompetent. The respondent was not called upon to answer such charge, but an
entirely separate and different one."
26 In People ex rel. Basshaw v. Thompson (55
Cal. App. 2d 147; 130 P.2d.237 [1942]), the Court of Appeal of California,
First Appellate District cited Thurston v. Clark, (107 Cal.
285, 40 P. 435), wherein it was ruled: "The Constitution does not
authorize the governor to suspend an incumbent of the office of county
commissioner for an act of malfeasance or misfeasance in office committed by
him prior to the date of the beginning of his current term of office as such
country commissioner."
27 Montgomery v. Nowell. (183 Ark. 1116; 40 S. W.2d
418 [1931]; decided by the Supreme Court of Arkansas), the headnote reads as
follows: "Crawford & Moses' Dig., 10, 335, providing for suspension of
an officer on presentment or indictment for certain causes including
malfeasance, in office does not provide for suspension of an officer on being
indicted for official misconduct during a prior term of office."
28 See Chief Justice Maria Lourdes P.A. Sereno’s interpellation,
TSN of the Oral Arguments, April 14,2015, p.43.
29 See Ombudsman's Memorandum, rollo, Vol. 11,
p. 716, citing Silos, Miguel U., A Re-examination of the Doctrine of
Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009), p. 67.
30 117 N.J.L. 64; 186 A. 818(1936).
31 Supra note 2.
32 See Article 8 of the Civil Code.
33 632 Phil. 657 (20 10).
34 Id. at 686.
35 154 Phil. 565 (1974).
36 282 Phil. 530 (1992).
37 Id. at 544.
38 G.R. No. 218463 March 1, 2017.
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EN BANC
G.R. No. 99031 October 15,
1991
RODOLFO D. LLAMAS, petitioner,
vs.
EXECUTIVE SECRETARY OSCAR ORBOS and
MARIANO UN OCAMPO III, respondents.
Mauricio Law Office for petitioner.
Ongkiko, Bucoy, Dizon &
Associates for private respondent.
PARAS, J.:
The case before Us calls for a determination of whether or not the
President of the Philippines has the power to grant executive clemency in
administrative cases. In connection therewith, two important questions are also
put in issue, namely, whether or not the grant of executive clemency and the
reason therefore, are political questions beyond judicial review, and whether
or not the questioned act was characterized by grave abuse of discretion
amounting to lack of jurisdiction.
Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the
Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of
the Office of the President, the governorship (p. 1, Petition). Private
respondent Mariano Un Ocampo III is the incumbent Governor of the Province of
Tarlac and was suspended from office for a period of 90 days. Public respondent
Oscar Orbos was the Executive Secretary at the time of the filing of this
petition and is being impleaded herein in that official capacity for having
issued, by authority of the President, the assailed Resolution granting
executive clemency to respondent governor.
Sometime in 1989, petiotioner, together with Tarlac Board Members
Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on June 13, 1989 a verified
complaint dated June 7, 1989 against respondent governor before the then
Department of Local Government (DLG, for short), charging him with alleged
violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas Pambansa
(B.P.) Blg. 337, otherwise known as the Local Government Code, and other
appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior
to that, petitoner filed with the Office of the Omdusman a verified complainant
dated November 10, 1988 against respondent governor for the latter's alleged
viloation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act.
The complaint before the DLG, docketed as Administrative Case
10459, was subsequently tried, where both petitioner and respondent govemor
presented their respective evidence.
Petitioner maintains that sometime in August, 1988, respondent
governor, in his official capacity as Provincial Governor Tarlac, entered into
and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock
and non-profit organization headed by the governor himself as chairman and
controlled by his brother-in-law as executive director, trustee, and secretary;
that the said Loan Agreement was never authorized and approved by the
Provincial Board, in direct contravention of the provisions of the Local
Government Code; that the said Agreement is wholly one-sided in favor of the
Foundation and grossly inimical to the interest of the Provincial Government
(because it did not provide for interest or for any type security and it did
not provide for suretyship and comptrollership or audit to control the safe
disbursement of said loan); that a total amount of P20,000,000.00 was disbursed
to the aforesaid Foundation; that the transactions constitute a fraudulent
scheme to defraud the Provincial Government; and that the said Agreement is
wholly unconstitutional, illegal, a immoral. (Annex "A", Petition)
On the other hand, it is the contention of respondent governor that
"the funds were intended to generate livelihood project among the
residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was
authorized by law and considered the best alternative as a matter of
judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said
Foundation in order to forestall any suspicion that he would influence it; that
it is not true that the Loan Agreement did not provide for continuing audit by
the Provincial Government because the Memorandum of Agreement provides
otherwise; and that the Agreement is not manifestly and grossly disadvantageous
to the Provincial Government and respondent governor did not and would not profit
thereby because it provided sufficient safeguards for repayment. (Annex
"A", Petition)
After trial, the Secretary of the then Department of Local
Government rendered a decision dated September 21, 1990, dispositive portion of
which reads:
WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found
guilty of having violated Section 3(g) of Republic Act No.3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, which act amounts to serious
neglect of duty and/or abuse of authority, for which tilp penalty of suspension
from office for a period of ninety (90) days, effective upon the finality of
this Decision, is hereby imposed upon him. (p. 3, Petition)
Parenthetically, be it noted that the Resolution imposed not a
preventive suspension but a penalty of suspension.
Respondent govemor moved for a reconsideration of the abovequoted
decision but the same was denied on October 19, 1990. Aggrieved, he appealed
the DLG decision dated September 21, 1990 and the order of denial dated October
19, 1990 to the Office of the President (O.P. Case No. 4480).
On February 26, 1991, herein public respondent Executive Secretary
issued a Resolution dismissing respondent governor's appeal and affirming the
September 21, 1990 DLG decision.
Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337,
to the effect that the decision of the Office of the President in
administrative suspension of local officials shall be immediately executory
without prejudice to appeal to appropriate courts, petitioner, on March 1,
1991, took his oath of office as acting governor. Under the administrative
suspension order, petitioner had up to May 31, 1991 as acting governor. On the
same date (March 1, 1991), respondent govemor moved for a reconsideration of
the Executive Secretary's Resolution, to which petitioner filed an opposition.
From the allegations of the petitioner in his petition, respondent govemor
accepted his suspension and turned over his office to petitioner.
To the surprise of petitioner, however, respondent govemor on March
19, 1991, issued an "administrative order" dated March 8, 1991, in
which the latter signified his intention to "(continue, as I am bound to
exercise my fimctions as govemor and shall hold office at my residence,"
in the belief that "the pendency of my Motion for Reconsideration
precludes the coming into finality as executory the DLG decision." (Annex
"E", Petition; p. 10, Comment). And, as categorically stated in the
petition, the reassumption ceremony by respondent governor was held on May 21, 1991
(p. 8, Petition).
Without ruling on respondent governor's Motion for Reconsideration,
public respondent issued a Resolution dated May 15, 1991, in O.P. Case No.
4480, which reads:
This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac
for executive clemency, interposed in connection with the decision of the
Secretary of then Department of Local Governmen (DLG) dated 21 September 1990,
as affirmed in a Resolution of this Office dated 26 February 1991, suspending
petitioner from office for period of ninety (90) days upon the finality of said
decision.
As will be recalled, the DLG Secretary imposed the penalty of
suspension upon his finding that petitioner was guilty of serious neglect of
duty and/or abuse of authority for entering into a loan contract — with the
Lingkod Tarlac Foundation, Inc. (LTFI) — grossly/manifestly disadvantageous to
Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for a
thirty (30)-day reduction of his suspension, petitioner invited attention to the
DLG Secretary's decision clearing him of having personally benefitted from the
questioned transaction. In the same letter, petitioner manifests serving more
than sixty (60) days of the ninety-day suspension. Previously, petitioner
submitted documents and letters from his constituents tending to show the
relative success of his livelihood loan program pursue under the aegis of the
LTFI and/or the Foundation's credible loan repayment record. To cite some:
1. Certification of the Chairman,Tarlac Integrated Livelihood
Cooperative, Inc., attesting to the full payment of its loan (P15.05 M) plus
interest with LTFI;
2. Certification of the Manager, Rural Bank of Geron (Tarlac),
Inc., attesting to the gradual liquidation of the loan granted to
family-borrowers out of funds provided by LTFI;
3. Letter of Jover's Phil., expressing gratitude for the loan
assistance extended for its export activities by LTFI;
4. Letter of the Tarlac Provincial Agricultural Officer i forming
that the proceeds of the loan from LTFI have bee utilized in hybrid com
production; and
5. Letter of the President of the Federation of Tobacco Leaf
Producers of Tarlac, Inc., informing of the payment of 76 of the amount
(P203,966.00) loaned to the Federation for tobacco production.
Petitioner's act, vis-a-vis the loan to LTFI, may
have been promp by an over eagerness to accelerate the delivery of livelihood
services to his provincemates. As the truism goes, however, the end does not
always justify the means. Be that as it may, but without belaboring the
propriety of the loan agreement aforementioned, some measure of leniency may be
accorded petitioner as the purpose of his suspen sion may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted
executive clemency in the sense that his ninety-day suspension is hereby
reduced to the period already served.
SO ORDERED.
(Annex "F", Petition; pp. 25-26, Rollo)
By virtue of the aforequoted Resolution, respondent governor
reassumed the governorship of the province, allegedly withou any notification
made to the petitioner.
Petitioner posits that the issuance by public respondent of the May
15, 1991 Resolution was "whimsical, capricious and despotic, and
constituted grave abuse of discretion amounting lack of jurisdiction," (p.
6, petition) basically on the ground th executive clemency could be granted by
the President only in criminal cases as there is nothing in the statute books
or even in the Constitution which allows the grant thereof in administrative
cases. Petitioner also contends that since respondent governor refused to
recognize his suspension (having reassumed the governorship in gross defiance
of the suspension order), executive clemency cannot apply to him; that his
rights to due process were violated because the grant of executive clemency was
so sudden that he was not even notified thereof; and that despite a finding by
public respondent of impropriety in the loan transaction entered into by
respondent governor, the former failed to justify the reduction of the penalty
of suspension on the latter. Petitioner further alleges that the exftutive
clemency granted by public respondent was "the product of a hocus-pocus
strategy" (p. 1, Manifestation with Motion, etc.) because there was
allegedly no real petition for the grant of executive clemency filed by
respondent govemor.
Batas Pambansa Blg. 337 provides:
Sec. 63. Preventive Suspension. — (1) Preventive
suspension may be imposed by the Minister of Local Government if the respondent
is a provincial or city official, ...
(2) Preventive suspension may be imposed at any time after the
issues are joined, when there is reasonable ground to believe that the
respondent has committed the act or acts complained of, when the evidence of
culpability is strong, when the gravity of the offense s warrants, or when the
continuance in office of the respondent coul influence the witnesses or pose a
threat to the safety and integrity the records and other evidence. In
all cases, preventive suspension shall not extend beyond sixty days after
the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall
be deemed reinstated in office without prejudice to the
continuation the proceedings against him until its termination. (Emphasis
supplied)
It is admitted by petitioner that since March 1, 1991, he has
assumed the governorship. A portion of the petition is hereon der quoted as
follows:
7. [On February 28, 1991], and in accordance with the provisions of
the Local Government Code (Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the
effect that the decision of the Office of the President in an administrative
suspension of local officials shall be immediately executory without prejudice
to appeal to appropriate courts, Petitioner Llamas took his oath of office as acting
govemor. Under the administrative suspension order, Llamas had up to May 31
[sic 29] 1991 as acting governor;
8. A copy of this oath of office is attached and made a part hereof
as Annex B;
9. Significantly, this oath of office was sworn to by Petitioner
Llamas before Secretary Santos of the newly created Department Interior and
Local Government, as shown by the lower portion Annex B, and by a picture of
the oathtaking itself, attached and mad a part hereof as Annex B-1;
10. Subsequently, Petitioner Llamas and Respondent Ocampo met,
where Ocampo was shown Llamas' oath of office. During meeting, held in the
presence of all department heads at the provi cial capitol and in the presence
of various local government offici and representatives of the media, Ocampo
agreed to turn over reigns of the provincial government to Petitioner;
11. In fact, Ocampo had asked the department heads and all other
officials of the provincial government of Tarlac to extend their cooperation to
Llamas, during the ninety days that the latter would assume the governorship;
12. And, as if this was not enough, Ocampo even made announcements
in the media that he was allowing Petitioner Llamas to perform his functions as
acting governor at the Office of the Govern at the Capitol where he (Ocampo)
used to hold office (true enough Ocampo has subsequently allowed Llamas to hold
office at the of the Governor, with Ocampo even escorting the acting therein
last March 4, 1991);
l 3. An account of Ocampo's acceptance of his suspension and of his
having turned over his office to Petitioner Llamas was published, front page,
in the March 5, 1991 issue of the Manila Bulletin. A copy of this news account
is attached and made a part hereof as Annex C);
14. Furthermore, various other officials, President Aquino Rep.
Jose Cojuangco included, have extended recognition to Petitions Llamas'
assumption of the governorship. Llamas met with President Aquino and Rep.
Cojuangco and, during this meeting, the two highest officials of the land have
asked Llamas to discharge his duties acting governor;
15. Secretary Santos, for that matter, has issued a designation to
Tarlac Senior Board Member Aganon, dated March 18, 1991, a pointing bim as
acting vice governor of the province, "in view of the suspension of Gov.
Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as
acting governor." A copy of this designation is attached and made a part
hereof as Annex D;
x x x x x x
x x x
30. ... [T]he reassumption ceremony by [Governor] Ocampo was held
[in the] morning of May 21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 &
8, Rollo)
It is prayed in the instant petition dated May 21, 1991 that:
b. In the meantime that this action is pending, and irnmediately
upon the filing hereof, a temporary restraining order be issued stopping the
Respondents from enforcing, in any manner, the aforesaid contested resolution,
and Respondent Ocampo, firom continuing with his reassumption of the
governorship. IN THE ALTERNATIVE, that a cease and desist order be issued
against Respondent Ocampo stopping him from continuing with hiii reassumption
of the governorship.
Let us first deal with the issue on jurisdiction. Respondent
govemor avers that since under the Constitution fiffl discretionary authority
is granted to the President on the exercise of executive clemency, the same
constitutes a political question which is beyond judicial review.
Such a rule does not hold true in the case at bar. While it is true
that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is
also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by
the Constitution, We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or correction of the act of
the President, nor does it constitute interference with the functions of the
President. In this connection, the case of Tanada and Macapagal vs.
Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote:
Elsewhere in this treatise the well-known and well-established
principle is considered that it is not within the province of the courts to
pass judgment upon the policy of legislative or executive action. Where,
therefore, discretionary powers are granted by the Consfitution or by statute,
the manner in which those powers are exercised is not subject to judicial
review. The courts, therefore, concern themselves only with the question as to
the existence and extent of these discretionary powers.
As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of government because in
very many cases their action is necessarily dictated by considerations of
public or political policy. These considerations of public or political policy
of course will not permit the legislature to violate constitutional provisions,
or the executive to exercise authority not granted him by the Constitution or
by statute, but, within these limits, they do permit the departments,
separately or together, to recognize that a certain set of facts exists or that
a given status exists, and these determinations, together with the consequences
that flow therefrom, may not be traversed in the courts. (Willoughby on the
Constitution of the United States, Vol. 3, p. 1326).
x x x x x x
x x x
What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be exercised by
the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the
goverrunent, with discretionary power to act. See State vs. Cunningham, 81 Wis.
497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519;
Green vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle,
151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have no
judicial control over such matters, not merely because they involve political
question, but because they are matters which the people have by the Constitute
delegated to the Legislature. The Governor may exercise the powers delegated to
him, free from judicial control, so long as he observes the laws and acts
within the limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a political nature, but because
the Constitution and laws have placed the particular matter under his control.
But every officer under a constitutional government must act according to law
and subject him to the restraining and controlling power of the people, acting
through the courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary the
department which is charged with the special duty of determinining the
limitations which the law places upon all official action. The recognition of
this principle, unknown except in Great Britain and America, is necessary, to
"the end that the government may be one of laws and not men" — words
which Webster said were the greatest contained in any written constitutional
document.
Besides, under the 1987 Constitution, the Supreme Court has been
conferred an "expanded jurisdiction" to review the decisions of the
other branches and agencies of the government to determine whether or not they
have acted within the bounds of the Constitution (See Art. VIII, Sec. 1,
Constitution). "Yet, in the exercise thereof, the Court is to merely check
whether or not the govermental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different
view" (Co vs. Electoral Tribunal of the House of Representatives &
Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of
Representatives & Ong, G.R Nos. 92202-03, July 30, 1991).
In the case at bar, the nature of the question for determination is
not purely political. Here, we are called upon to decide whether under the
Constitution the President may grant executive clemency in administrative
cases. We must not overlook the fact that the exercise by the President of her
power of executive clemency is subject to constitutional l'um'tations. We will
merely check whether the particular measure in question has been in accordance
with law. In so doing, We will not concern ourselves with the reasons or
motives which actuate the President as such is clearly beyond our power of
judicial review.
Petitioner's main argument is that the President may grant
executive clemency only in criminal cases, based on Article VII, Section 19 of
the Constitution which reads:
Sec. 19. Except in cases of impeachment, or as otherwise pro vided
in this Constitution, the President may grant reprieves, commu tations, and
pardons, and remit fines and forfeitures, after conviction by
final judgment.
He shall also have the power to grant amnesty with the concurrence
of a majority of all the members of the Congress. (Emphasis supplied)
According to the petitioner, the qualifying phrase "after
conviction by final judgment" applies solely to criminal cases, and no
other law allows the grant of executive clemency or pardon to anyone who has
been "convicted in an administrative case," allegedly because the
word "conviction" refers only to criminal cases (par. 22-b, c, d,
Petition). Petitioner, however, describes in his very own words, respondent
governor as one who has been "convicted in an administrative case"
(par. 22-a, petition). Thus, petitioner concedes that the word
"conviction" may be used either in a criminal case or in an
administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536,
We ruled:
For misfeasance or malfeasance ... any [elective official] could
... be proceeded against administratively or ... criminally. In either case,
his culpability must be established ...
It is also important to note that respondent govemor's Motion for
Reconsideration filed on March 1, 1991 was withdrawn in his petition for the
grant of executive clemency, which fact rendered the Resolution dated February
26, 1991 affirming the DLG Decision (which found respondent governor guilty of
neglect of duty and/or abuse of authority and which suspended him for ninety
(90) days) final.
Moreover, applying the doctrine "Ubi lex non distinguit, nec
nos distinguire debemos," We cannot sustain petitioner's view. In other
words, if the law does not distinguish, so We must no distinguish. The
Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By
the same token, if executive clemency may be exercised only in criminal cases,
it would indeed be unnecessary to provide for the exclusion of impeachment
cases from the coverage of Article VII, Section 19 of the Constitution.
Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal
offenses.
In the same vein, We do not clearly see any valid and convincing
reason why the President cannot grant executive clemency in administrative
cases. It is Our considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal cases,
with much more reason can she grant executive clemency in administrative cases,
which are clearly less serious than criminal offenses.
A number of laws impliedly or expressly recognize or support the
exercise of the executive clemency in administrative cases.
Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the
President may commute or remove administrative penalties or disabilities issued
upon officers and employees, in disciplinary cases, subject to such terms and
conditions as he may impose in the interest of the service."
During the deliberations of the Constitutional Commission, a
subject of deliberations was the proposed amendment to Art. VII, Sec. 19 which
reads as follows: "However, the power to grant executive clemency for
violation of corrupt practices laws may be limited by legislation."The
Constitutional Commission, however, voted to remove the amendment, since it was
in derogation of the powers of the President. As Mr. Natividad stated:
I am also against this provision which will again chip more powers
from the President. In case of other criminals convicted in our society we
extend probation to them while in this case, they have already been convicted
and we offer mercy. The only way we can offer mercy to them is through this
executive clemency extended to them by the President. If we still close this
avenue to them, they would be prejudiced even worse than the murderers and the
more vicious killers in our society ....
The proposal was primarily intended to prevent the President from
protecting his cronies. Manifestly, however, the Commission preferred to trust
in the discretion of Presidents and refrained from putting additional
limitations on his clemency powers. (II RECORD of the Constitutional
Commission, 392, 418-419, 524-525)
It is evident from the intent of the Constitutional Commission,
therefore, that the President's executive clemency powers may not be limited in
terms of coverage, except as already provided in the Constitution, that is,
"no pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules and regulations shall be granted by the President without
the favorable recommendation of the COMELEC" (Article IX, C, Section 5,
Constitution). If those already adjudged guilty criminally in court may be pardoned,
those adjudged guilty administratively should likewise be extended the same
benefit.
In criminal cases, the quantum of evidence required to convict an
individual is proof beyond reasonable doubt, but the Constitution grants to the
President the power to pardon the act done by the proved criminal and in the
process exempts him from punishment therefor. On the other hand, in
administrative cases, the quantum of evidence required is mere substantial
evidence to support a decision, not to mention that as to the admissibility of
evidence, administrative bodies are not bound by the technical and rigid rules
of admissibility prescribed in criminal cases. It will therefore be unjust and
unfair for those found guilty administratively of some charge if the same
effects of pardon or executive clemency cannot be extended to them, even in the
sense of modifying a decision to subserve the interest of the public. (p. 34,
Comment of public respondent)
Of equal importance are the following provisions of Executive Order
No. 292, otherwise known as the Administrative Code of 1987, Section I, Book
III of which provides:
SECTION 1. Power of Control. — The President shall have
control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
SECTION 38. Definition of Administrative Relationships.
— Unless otherwise expressly stated in the Code or in other laws defining the
special relationships of particular agencies, administrative relationships
shall be categorized and defined as follows:
(1) Supervision and Control. — Supervision and control
shall include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the performance of
duty; restrain the commission of acts; review, approve, reverse or
modify acts and decisions of subordinate officials or units; determine
priorities in the execution of plans and programs. Unless a different meaning
is explicitly provided in the specific law governing the relationship of particular
agencies the word "control" shall encompass supervision and control
as defined in this paragraph. ... (emphasis supplied)
The disciplinary authority to investigate, suspend, and remove
provincial or city officials devolves at the first instance on the Department
of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and
ultimately on the President (Sec. 66). Implicit in this authority, however, is
the "supervision and control" power of the President to reduce, if
circumstances so warrant, the imposable penalty or to modify the suspension or
removal order, even "in the sense" of granting executive clemency.
"Control," within the meaning of the Constitution, is the power to
substitute one's own judgment for that of a subordinate. Under the doctrine of
Qualified Political Agency, the different executive departments are mere
adjuncts of the President. Their acts are presumptively the acts of the
President until countermanded or reprobated by her (Vinena v. Secretary, 67
Phil. 451; Free Telephone Workers Union vs. Minister of Labor and Employment,
108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor
General that in the present case, the President, in the exercise of her power
of supervision and control over all executive departments, may substitute her
decision for that of her subordinate, most especially where the basis therefor
would be to serve the greater public interest. It is clearly within the power
of the President not only to grant "executive clemency" but also to reverse
or modify a ruling issued by a subordinate against an erring public official,
where a reconsideration of the facts alleged would support the same. It
is in this sense that the alleged executive clemency was
granted, after adducing reasons that subserve the public interest. — "the
relative success of . . . livelihood loan program." (pp. 39-40, Comment of
public respondent)
We wish to stress however that when we say the President can grant
executive clemency in administrative cases, We refer only to all administrative
cases in the Executive branch, not in the Judicial or Legislative branches of
the government.
Noteworthy is the fact that on March 1, 1991, respondent governor
filed a motion for reconsideration and the same may be regarded as implicitly resolved,
not only because of its withdrawal but also because of the executive clemency
which in effect reduced the penalty, conformably with the power of
"control."
On petitioner's argument that private respondent's motion for
reconsideration has abated the running of the reglementary period for finality
of judgment in O.P. Case No. 4480 (that is, there being no final judgment to
speak of, the pardon granted was premature and of no effect, We reiterate the
doctrine that upon acceptance of a presidential pardon, the grantee is deemed
to have waived any appeal which he may have filed. Thus, it was held that:
The commutation of the penalty is impressed with legal
significance. That is an exercise of executive clemency embraced in the
pardoning power. According to the Constitution: "The President may except
in cases of impeachment, grant reprieves, commutations and pardons, remit fines
and forfeitures and, with the concurrence of the Batasang Pambansa, grant
amnesty. "Once granted, it is binding and effective. It serves to put an
end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA
190. 196). (See also Peo v. Crisola, 129 SCRA 13)
Consequently, respondent governor's acceptance of the presidential
pardon "serves to put an end" to the motion for reconsideration and
renders the subject decision final, that of the period already served.
Finally, petitioner's argument that his constitutional rights to
due process were violated is uruneritorious. Pardon has been defined as
"the private, though official, act of the executive magistrate, delivered
to the individual for whose benefit it is intended and not communicated
officially to the court. ..." (Bernas, The Constitution of the
Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7
Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not notified of the
subject pardon, it is only because said notice is unnecessary. Besides,
petitioner's claim that respondent governor has not begun serve sentence is
belied by his very own factual allegations in his petition, more particularly
that he served as Acting Governor of Tarlac effective from the date he took his
Oath of Office on February 28, 1991 up to the time respondent govemor reassumed
the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is,
therefore, error to say that private respondent did not serve any portion of
the 90-day suspension meted upon him.
We fail to see any grave abuse of discretion amounting to lack or
in excess of jurisdiction committed by public respondent.
WHEREFORE, judgment is hereby rendered: (1) DECLARING that the
President did not act arbitrarily or with abuse, much less grave abuse of
discretion in issuing the May 15, 1991 Resolution granting on the grounds
mentioned therein, executive clemency to respondent governor and that,
accordingly, the same is not unconstitutional (without prejudice to criminal
proceedings which have been filed or may be filed against respondent governor),
and (2) DENYING the rest of the prayers in the petition for being
unmeritorious, moot and academic. No costs.
SO ORDERED.
Fernan, C.J., Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Melencio-Herrera, J., is on leave.
Separate Opinions
CRUZ, J., dissenting:
I concur in the result and would s the challenged resolution
of May 18, 1991, on the basis only of the Fresident's control power. I think
the discussion of the pardoning power is unnecessary and may even be misleading
as the ponencia itself says that it was not by virtue thereof
that the private respondent's penalty was reduced. The correct approach, if I
may spectfully suggest it, is to uphold the resolution solely on strength of
the President's power of "control of all the executive departments,
bureaus and offices" under Article VII, Sect 17, of the Constitution.
We have held in many cases that a Cabinet member is an alter
ego of the President whose acts may be affirmed, modified reversed by
the latter in his discretion. (Villena v. Sec. of Interior, 67 Phil. 451; Lacson-Magallanes
v. Paño, 21 SC 895; Gascon v. Arroyo, 178 SCRA 582; De Leon v. Carpio, 1 SCRA
457). What happened in this case was that President Aquino saw fit to amend the
decision rendered by the Secretary of Local Government on September 21, 1990, by
reducing 90-day suspension imposed on Gov. Ocampo. The President had the
authority to do this, and she could exercise it through Executive Secretary.
His act, not having been "reprobated disauthorized" by her, is
presumed to be the act of the Preside herself.
The Court is not concerned with the wisdom of that act, on
its legality. I believe the act is legal but reserve judgment on its wisdom.
PADILLA, J., dissenting:
I vote to grant the petition which seeks to annul the 15 May
1991 resolution of the Office of the President, for the reason that the
respondent Executive Secretary, presumably acting on behalf of the President,
had acted in excess of his jurisdiction in granting executive clemency to
private respondent Ocampo III by reducing the ninety-day suspension imposed
upon him to the period he had already served.
Under the Local Government Code (BP 337), — the law in force
at the time material to this case, the authority of the President over local
governments is one of general supervision only, to ensure that
local affairs are administered according law. General supervision over local
governments includes the authority to order an investigation of the conduct of
local officials whenever necessary. 1 The
1987 Constitution as well as the Administrative Code of 1987 also grants to the
President the power of general supervision over local governments. 2
In taking
disciplinary action against local elective officials, the President has no
inherent power to suspend or remove them unless authorized by law and
on grounds set forth by the latter. 3 Section
60 of the Local Government Code 4 enumerates
the acts for which an elective local official may be suspended or removed. The
Secretary of Interior and Local Government is given the authority to try
complaints filed against any elective city or provincial official. 5 The
decision of removal or suspension by the Secretary of Interior and Local
Government is appealable to the Office of the President. 6 The
appellate jurisdiction of the President to review, reverse or modify the
decision of the Secretary of Interior and Local Government does not carry with
it the power to grant executive clemency. Neither does the Local Government Code
expressly vest upon the President the power to commute or lift the
administrative sanctions imposed upon erring, local elective officials after
the decision has become final.
The suspension of private respondent Ocampo III
for ninety (90) days was imposed after investigation and hearing of the
complaint against him. The decision of suspension was rendered after a finding
by the Secretary of Interior and Local Government that private respondent had
committed and which was manifestly and grossly disadvantageous to the
Provincial Government of Tarlac. Thus, the suspension meted o to private
respondent is entirely distinct and separate from preventive
suspension imposed on local elective officials prior the final
determination of the complaint filed against them, which is limited to only
sixty (60) days under the Local Government Code. A preventive suspension may be
imposed after issues have been joined and before the termination of the case
when there is reasonable ground to believe that respondent had committed the
act complained of and the evidence of culpability is strong, when the gravity
of the offense warrants such preventive suspension; or when the continuance in
office of the respondent could influence the witnesses or pose a threat to the
safe and integrity of the records and other evidence. 7
In
contrast, the administrative sanction of suspension imposed after the case has
been heard is subject to the limitation that it must not exceed the unexpired
term of the respondent nor bar the respondent from an elective public office
for as long as he meets the qualifications required by law. 8 Considering
that private respondent's suspension was not a preventive one but a punitive
sanction, the limitation of sixty (60) days does not apply.
At the time the questioned grant of executive
clemency was issued by respondent Secretary to private respondent, a motion for
reconsideration by private respondent Ocampo III was pending. Assuming (without
admitting) that the constitutional power of the President to grant executive
clemency extends to administrative sanctions imposed in an administrative
proceeding such reduction of the period of suspension of private respondent
was premature under the circumstances. Had respondent
Secretary, acting for the President, really believed that the origin 90-day period
of suspension imposed upon private respondent was too harsh, the President
could have modified the imposed penalty by reducing the same or entirely
lifting such suspension in resolving the pending motion for reconsideration.
Furthermore, private respondent had already served eighty one (81) days out of
the 90-day suspension when the executive clemency was extended. With only nine
(9) days left unserved of the suspension imposed, the reason behind the grant
of such executive clemency to private respondent appears dubious, if not
entirely whimsical.
It is the contention of private respondent that
the reduction of his suspension was granted in accordance with the
Constitution. I disagree. It is my opinion that the constitutional
grant of power to the President to accord executive clemency, does not extend
to administrative sanctions imposed, in an administrative proceeding. Sec.
19, Art. VII of the 1987 Constitution clearly provides that —
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of the Congress. (Emphasis
supplied)
The philosophy behind the grant of power to the
President to grant executive clemency is founded on the recognition that human
institutions are imperfect and that there are infirmities, deficiencies or
flaws in the administration of justice. The power exists as an instrument or
means for correcting these infirmities and also for mitigating whatever
harshness might be generated by a too strict an application of the law. 9 This
principle applies to all criminal offenses committed against the state.
Pardon is
an act of grace proceeding from the power entrusted with the execution of the
laws, which exempts the individual on whom it is bestowed from the punishment
the law inflicts for a crime he has committed. It is a voluntary
act of the sovereign, granting outright remission of guilt and declaring record
that a particular individual is to be relieved of the legal consequences of
a particular crime. 10 Amnesty commonly
d notes a general pardon to rebels for their treason or other high political
offenses, or the forgiveness which one sovereign grants to the subjects of
another, who have offended by some breach the law of nations. 11
A commutation of
sentence is the reduction of penalty imposed 12 while
reprieve is defined as the temporary suspension of the execution of a sentence,
especially of a sentence of death. 13 The object
of commutation of sentence is the rehabilitation the criminal offender. 14 The
law of respite or reprieve appeal to apply only to capital sentences. 15
From the
foregoing definitions of the different forms by which the President may
exercise the power to grant executive clemency, it is plainly evident
that the intention of the Constitution is to empower and enable the President
to afford relief from enforcement of the criminal law which imposes penalty and
which appears unduly harsh. However, the President's pardoning power cannot
be used to release or destroy the civil rights or remedies of private
individuals, 16 or
to relieve against private obligations, civil penalties and forfeitures, or an
order or judgment in a civil action or proceeding, or an administrative
proceeding. 17
In order that the President may be able to exercise
the power to commute or remove administrative penalties or disabilities in an
administrative proceeding for violation of the Local Government Code, such
power must be expressly provided for by law. It may not just be inferred from
the President's authority to exercise general supervision over local
governments nor from the President's power of control over the acts of the
Secretary of Interior and Local Government.
In the case at bar, private respondent entered into
and executed a loan agreement with a non-stock and non-profit organization
known as Lingkod Tarlac Foundation, Inc. without instituting adequate
safeguards in the loan document, without a time frame for repayments,
reasonable repayment schedule and security or surety for the amount of the
loan. Such act of private respondent was found by the Secretary of Interior and
Local Government as manifestly and grossly disadvantageous to the Provincial
Government of Tarlac, amounting to serious neglect of duty and/or abuse of
authority, punishable by suspension or removal under Sec. 60 of the Local
Government Code.
The administrative sanction of suspension imposed
upon private respondent does not affect the criminal complaint also filed
against him before the Office of the Ombudsman for violation of the Anti-Graft
Law (Rep. Act 3019). The administrative finding of the Secretary of Interior
and Local Government, as affirmed by the Office of the President,
that private respondent had committed neglect of duty and/or abuse of authority
while in office, was not by virtue of a criminal proceeding. Thus, it
cannot be said that there was a criminal conviction of the private respondent
by final judgment. Nor can it be said that the disciplinary action
suspending private respondent is an execution and/or enforcement of the
criminal laws of the land. Therefore, the President's power to grant executive
clemency is not applicable or even relevant in the case at bar.
From the deliberations of the Constitutional
Commission which drafted the 1987 Constitution, it is clear that the
intention of the framers of the fundamental law was to extend to the President
the power to grant pardons, reprieves, or commutations in cases involving
criminal offenses, which include violations of the Anti-Graft Law. There is
no indication at all that such power to grant executive clemency by the
President may be extended to administrative sanctions imposed in an
administrative proceeding. In this connection, it is timely to once more
re-state that in a constitutional republic, such as ours, sovereignty resides
in the people and all government authority emanates from them. The people,
through the Constitution, have delegated to the President and other
institutions of government certain powers and those not delegated remain with
the people. The President, in the Constitution, has been delegated the power to
grant reprieves, commutations and pardons "after conviction by final
judgment". This power can not be stretched even by fiction or imagination
to include the authority to grant similar reprieves, commutations or pardons
over sanctions in administratives proceedings.
ACCORDINGLY, I vote to annul the resolution of the
respondent Executive Secretary dated 15 May 1991, as having been issued clearly
in excess of jurisdiction or with grave abuse or discretion amounting to lack
or excess of jurisdiction.
# Separate
Opinions
CRUZ, J., dissenting:
I concur in the result and would s the challenged
resolution of May 18, 1991, on the basis only of the Fresident's control power.
I think the discussion of the pardoning power is unnecessary and may even be
misleading as the ponencia itself says that it was not by
virtue thereof that the private respondent's penalty was reduced. The correct
approach, if I may spectfully suggest it, is to uphold the resolution solely on
strength of the President's power of "control of all the executive
departments, bureaus and offices" under Article VII, Sect 17, of the
Constitution.
We have held in many cases that a Cabinet member is
an alter ego of the President whose acts may be affirmed,
modified reversed by the latter in his discretion. (Villena v. Sec. of
Interior, 67 Phil. 451; Lacson-Magallanes v. Paño, 21 SC 895; Gascon v. Arroyo,
178 SCRA 582; De Leon v. Carpio, 1 SCRA 457). What happened in this case was
that President Aquino saw fit to amend the decision rendered by the Secretary
of Local Government on September 21, 1990, by reducing 90-day suspension
imposed on Gov. Ocampo. The President had the authority to do this, and she
could exercise it through Executive Secretary. His act, not having been
"reprobated disauthorized" by her, is presumed to be the act of the
Preside herself.
The Court is not concerned with the wisdom of that
act, on its legality. I believe the act is legal but reserve judgment on its
wisdom.
PADILLA, J., dissenting:
I vote to grant the petition which seeks to annul the
15 May 1991 resolution of the Office of the President, for the reason that the
respondent Executive Secretary, presumably acting on behalf of the President,
had acted in excess of his jurisdiction in granting executive clemency to
private respondent Ocampo III by reducing the ninety-day suspension imposed
upon him to the period he had already served.
Under the
Local Government Code (BP 337), — the law in force at the time material to this
case, the authority of the President over local governments is one of general
supervision only, to ensure that local affairs are administered
according law. General supervision over local governments includes the
authority to order an investigation of the conduct of local officials whenever
necessary. 1 The
1987 Constitution as well as the Administrative Code of 1987 also grants to the
President the power of general supervision over local governments. 2
In taking
disciplinary action against local elective officials, the President has no
inherent power to suspend or remove them unless authorized by law and
on grounds set forth by the latter. 3 Section
60 of the Local Government Code 4 enumerates
the acts for which an elective local official may be suspended or removed. The
Secretary of Interior and Local Government is given the authority to try
complaints filed against any elective city or provincial official. 5 The
decision of removal or suspension by the Secretary of Interior and Local
Government is appealable to the Office of the President. 6 The
appellate jurisdiction of the President to review, reverse or modify the
decision of the Secretary of Interior and Local Government does not carry with
it the power to grant executive clemency. Neither does the Local Government
Code expressly vest upon the President the power to commute or lift the
administrative sanctions imposed upon erring, local elective officials after
the decision has become final.
The suspension of private respondent Ocampo III
for ninety (90) days was imposed after investigation and hearing of the
complaint against him. The decision of suspension was rendered after a finding
by the Secretary of Interior and Local Government that private respondent had
committed and which was manifestly and grossly disadvantageous to the
Provincial Government of Tarlac. Thus, the suspension meted o to private
respondent is entirely distinct and separate from preventive
suspension imposed on local elective officials prior the final
determination of the complaint filed against them, which is limited to only
sixty (60) days under the Local Government Code. A preventive suspension may be
imposed after issues have been joined and before the termination of the case
when there is reasonable ground to believe that respondent had committed the
act complained of and the evidence of culpability is strong, when the gravity
of the offense warrants such preventive suspension; or when the continuance in
office of the respondent could influence the witnesses or pose a threat to the
safe and integrity of the records and other evidence. 7
In
contrast, the administrative sanction of suspension imposed after the case has
been heard is subject to the limitation that it must not exceed the unexpired
term of the respondent nor bar the respondent from an elective public office
for as long as he meets the qualifications required by law. 8 Considering
that private respondent's suspension was not a preventive one but a punitive
sanction, the limitation of sixty (60) days does not apply.
At the time the questioned grant of executive
clemency was issued by respondent Secretary to private respondent, a motion for
reconsideration by private respondent Ocampo III was pending. Assuming (without
admitting) that the constitutional power of the President to grant executive
clemency extends to administrative sanctions imposed in an administrative
proceeding such reduction of the period of suspension of private respondent
was premature under the circumstances. Had respondent
Secretary, acting for the President, really believed that the origin 90-day
period of suspension imposed upon private respondent was too harsh, the
President could have modified the imposed penalty by reducing the same or
entirely lifting such suspension in resolving the pending motion for
reconsideration. Furthermore, private respondent had already served eighty one
(81) days out of the 90-day suspension when the executive clemency was
extended. With only nine (9) days left unserved of the suspension imposed, the
reason behind the grant of such executive clemency to private respondent
appears dubious, if not entirely whimsical.
It is the contention of private respondent that
the reduction of his suspension was granted in accordance with the
Constitution. I disagree. It is my opinion that the constitutional
grant of power to the President to accord executive clemency, does not extend
to administrative sanctions imposed, in an administrative proceeding. Sec.
19, Art. VII of the 1987 Constitution clearly provides that —
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of the Congress. (Emphasis
supplied)
The philosophy behind the grant of power to the
President to grant executive clemency is founded on the recognition that human
institutions are imperfect and that there are infirmities, deficiencies or
flaws in the administration of justice. The power exists as an instrument or
means for correcting these infirmities and also for mitigating whatever
harshness might be generated by a too strict an application of the law. 9 This
principle applies to all criminal offenses committed against the state.
Pardon is
an act of grace proceeding from the power entrusted with the execution of the
laws, which exempts the individual on whom it is bestowed from the punishment
the law inflicts for a crime he has committed. It is a voluntary
act of the sovereign, granting outright remission of guilt and declaring record
that a particular individual is to be relieved of the legal consequences of
a particular crime. 10 Amnesty commonly
d notes a general pardon to rebels for their treason or other high political
offenses, or the forgiveness which one sovereign grants to the subjects of
another, who have offended by some breach the law of nations. 11
A commutation of
sentence is the reduction of penalty imposed 12 while
reprieve is defined as the temporary suspension of the execution of a sentence,
especially of a sentence of death. 13 The
object of commutation of sentence is the rehabilitation the criminal
offender. 14 The
law of respite or reprieve appeal to apply only to capital sentences. 15
From the
foregoing definitions of the different forms by which the President may
exercise the power to grant executive clemency, it is plainly evident
that the intention of the Constitution is to empower and enable the President
to afford relief from enforcement of the criminal law which imposes penalty and
which appears unduly harsh. However, the President's pardoning power cannot
be used to release or destroy the civil rights or remedies of private
individuals, 16 or
to relieve against private obligations, civil penalties and forfeitures, or an
order or judgment in a civil action or proceeding, or an administrative
proceeding. 17
In order that the President may be able to exercise
the power to commute or remove administrative penalties or disabilities in an
administrative proceeding for violation of the Local Government Code, such
power must be expressly provided for by law. It may not just be inferred from
the President's authority to exercise general supervision over local governments
nor from the President's power of control over the acts of the Secretary of
Interior and Local Government.
In the case at bar, private respondent entered into
and executed a loan agreement with a non-stock and non-profit organization
known as Lingkod Tarlac Foundation, Inc. without instituting adequate
safeguards in the loan document, without a time frame for repayments,
reasonable repayment schedule and security or surety for the amount of the
loan. Such act of private respondent was found by the Secretary of Interior and
Local Government as manifestly and grossly disadvantageous to the Provincial
Government of Tarlac, amounting to serious neglect of duty and/or abuse of
authority, punishable by suspension or removal under Sec. 60 of the Local Government
Code.
The administrative sanction of suspension imposed
upon private respondent does not affect the criminal complaint also filed
against him before the Office of the Ombudsman for violation of the Anti-Graft
Law (Rep. Act 3019). The administrative finding of the Secretary of Interior
and Local Government, as affirmed by the Office of the President,
that private respondent had committed neglect of duty and/or abuse of authority
while in office, was not by virtue of a criminal proceeding. Thus, it
cannot be said that there was a criminal conviction of the private respondent
by final judgment. Nor can it be said that the disciplinary action
suspending private respondent is an execution and/or enforcement of the
criminal laws of the land. Therefore, the President's power to grant executive
clemency is not applicable or even relevant in the case at bar.
From the deliberations of the Constitutional
Commission which drafted the 1987 Constitution, it is clear that the
intention of the framers of the fundamental law was to extend to the President
the power to grant pardons, reprieves, or commutations in cases involving
criminal offenses, which include violations of the Anti-Graft Law. There is
no indication at all that such power to grant executive clemency by the
President may be extended to administrative sanctions imposed in an
administrative proceeding. In this connection, it is timely to once more
re-state that in a constitutional republic, such as ours, sovereignty resides
in the people and all government authority emanates from them. The people,
through the Constitution, have delegated to the President and other
institutions of government certain powers and those not delegated remain with
the people. The President, in the Constitution, has been delegated the power to
grant reprieves, commutations and pardons "after conviction by final
judgment". This power can not be stretched even by fiction or imagination
to include the authority to grant similar reprieves, commutations or pardons
over sanctions in administratives proceedings.
ACCORDINGLY, I vote to annul the resolution of the
respondent Executive Secretary dated 15 May 1991, as having been issued clearly
in excess of jurisdiction or with grave abuse or discretion amounting to lack
or excess of jurisdiction.
# Footnotes
* Retired on October 8, 1991.
1 Local Government Code (BP 337), Sec. 14, par. (1).
2 1987 Constitution, Art. X, Sec. 4-1 1987
Administrative Code, Book III, Title 1, Chapter 6, Section 18.
3 Lacson vs. Roque, 92 Phil. 452.
4 Sec. 60. Suspension and Removal; Grounds.
— An elective local official may be suspended or removed from office on any of
the following grounds committed while in office:
(1) Disloyalty to the Republic of the Philippines;
(2) Culpable violation of the Constitution;
(3) Dishonesty, oppression, misconduct in ofuce and
neglect of duty;
(4) Commission of any offense involving moral
turpitude;
(5) Abuse of authority;
(6) Unauthorized absence for three consecutive
months.
5 Local Government Code, Section 61.
6 Ibid, Section 66.
7 Local Government Code, Sec. 63.
8 Ibid., Sec. 65.
9 Comment by Joaquin G. Bemas, S.J. on the Revised
1973 Philippine Constitution, p. 228, Part 1, 1983 Edition.
10 67A C.J.S. Pardon and Parole S 3.
11 Villa vs. Allen, 2 Phil. 436.
12 Cabantay vs. Wolfe, 6 Phil. 276.
13 Philippine Law Dictionary by Moreno, p. 534,
Second Edition.
14 67A C.J.S., Pardon and Parole S 3.
15 Director of Prisons vs. Judge of First Instance,
29 Phil. 292.
16 67A C.J.S. S 10, citing In re Nevitt, Mo. 117 F.
448, 117 Federal Reporter 448.
17 Ibid, citing Theodore vs. Department
of Liquor Control, 527 S.W. 2d 350.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
FIRST DIVISION
G.R. No. 175457
July 6, 2011
RUPERTO A. AMBIL, JR., Petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175482
ALEXANDRINO R. APELADO,
SR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
VILLARAMA, JR., J.:
Before us are two consolidated petitions for review on certiorari
filed by petitioner Ruperto A. Ambil, Jr.1 and petitioner Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16, 2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case
No. 25892.
The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar
Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the
Ombudsman, praying for an investigation into the alleged transfer of then Mayor
Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the
provincial jail of Eastern Samar to the residence of petitioner, then Governor
Ruperto A. Ambil, Jr. In a Report6 dated January 4, 1999, the National Bureau of Investigation
(NBI) recommended the filing of criminal charges against petitioner Ambil, Jr.
for violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act, as amended. On September 22, 1999, the new
President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the
IBP is no longer interested in pursuing the case against petitioners. Thus, he
recommended the dismissal of the complaint against petitioners.8
Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and
Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A.
No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office
of the Ombudsman issued a Memorandum10 dated August 4, 2000, recommending the dismissal of the
complaint as regards Balano and the amendment of the Information to include the
charge of Delivering Prisoners from Jail under Article 15611 of the Revised Penal Code, as amended, (RPC)
against the remaining accused. The Amended Information12 reads:
That on or about the 6th day of September 1998, and for sometime
prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of
Eastern Samar, Philippines, and within the jurisdiction of this Honorable
Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the
Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then
the Provincial Warden of Eastern Samar, both having been public officers, duly
elected, appointed and qualified as such, committing the offense in relation to
office, conniving and confederating together and mutually helping x x x each
other, with deliberate intent, manifest partiality and evident bad faith, did
then and there wilfully, unlawfully and criminally order and cause the release
from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused
in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued
by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan,
Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco
Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said Mayor
Adalim to stay at accused Ambil’s residence for a period of Eighty-Five (85)
days, more or less which act was done without any court order, thus accused in
the performance of official functions had given unwarranted benefits and
advantage to detainee Mayor Francisco Adalim to the prejudice of the
government.
CONTRARY TO LAW.
BAIL BOND RECOMMENDED: P30,000.00 each.13
On arraignment, petitioners pleaded not guilty and posted bail.
At the pre-trial, petitioners admitted the allegations in the
Information. They reason, however, that Adalim’s transfer was justified
considering the imminent threats upon his person and the dangers posed by his
detention at the provincial jail. According to petitioners, Adalim’s sister,
Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail
where Mayor Adalim was to be held.
Consequently, the prosecution no longer offered testimonial
evidence and rested its case after the admission of its documentary exhibits.
Petitioners filed a Motion for Leave to File Demurrer to Evidence with
Reservation to Present Evidence in Case of Denial14 but the same was denied.
At the trial, petitioners presented three witnesses: petitioner
Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim.
Petitioner Ambil, Jr. testified that he was the Governor of Eastern
Samar from 1998 to 2001. According to him, it was upon the advice of Adalim’s
lawyers that he directed the transfer of Adalim’s detention to his home. He
cites poor security in the provincial jail as the primary reason for taking
personal custody of Adalim considering that the latter would be in the company
of inmates who were put away by his sister and guards identified with his
political opponents.15
For her part, Atty. White stated that she is the District Public
Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how
Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern
Samar, on September 6, 1998. According to Atty. White, she sought the
alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein
petitioner Apelado, Sr. failed to guarantee the mayor’s safety.16
Meanwhile, Francisco Adalim introduced himself as the Mayor of
Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection
with a murder case filed against him in the Regional Trial Court (RTC) of
Borongan, Eastern Samar. Adalim confirmed Atty. White’s account that he spotted
inmates who served as bodyguards for, or who are associated with, his political
rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan,
gesture to him with a raised clenched fist. Sensing danger, he called on his
sister for help. Adalim admitted staying at Ambil, Jr.’s residence for almost
three months before he posted bail after the charge against him was downgraded
to homicide.17
Petitioner Apelado, Sr. testified that he was the Provincial Jail
Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe
Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly,
Atty. White was contesting the legality of Mayor Adalim’s arrest and arguing with
the jail guards against booking him for detention. At the provincial jail,
petitioner was confronted by Atty. White who informed him that he was under the
governor, in the latter’s capacity as a provincial jailer. Petitioner claims
that it is for this reason that he submitted to the governor’s order to
relinquish custody of Adalim.18
Further, petitioner Apelado, Sr. described the physical condition
of the jail to be dilapidated and undermanned. According to him, only two
guards were incharge of looking after 50 inmates. There were two cells in the
jail, each housing 25 inmates, while an isolation cell of 10 square meters was
unserviceable at the time. Also, there were several nipa huts within the
perimeter for use during conjugal visits.19
On September 16, 2005, the Sandiganbayan, First Division,
promulgated the assailed Decision20 finding petitioners guilty of violating Section 3(e) of R.A.
No. 3019. The court ruled that in moving Adalim to a private residence,
petitioners have conspired to accord him unwarranted benefits in the form of
more comfortable quarters with access to television and other privileges that
other detainees do not enjoy. It stressed that under the Rules, no person under
detention by legal process shall be released or transferred except upon order
of the court or when he is admitted to bail.21
The Sandiganbayan brushed aside petitioners’ defense that Adalim’s
transfer was made to ensure his safety. It observed that petitioner Ambil, Jr.
did not personally verify any actual threat on Adalim’s life but relied simply
on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out the
availability of an isolation cell and nipa huts within the 10-meter-high
perimeter fence of the jail which could have been used to separate Adalim from
other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over
Adalim despite advice from Assistant Secretary Jesus Ingeniero of the
Department of Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to
an indeterminate penalty of imprisonment for nine (9) years, eight (8) months
and one (1) day to twelve (12) years and four (4) months. In favor of
petitioner Apelado, Sr., the court appreciated the incomplete justifying
circumstance of obedience to a superior order and sentenced him to imprisonment
for six (6) years and one (1) month to nine (9) years and eight (8) months.
Hence, the present petitions.
Petitioner Ambil, Jr. advances the following issues for our
consideration:
I
WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED,
APPLIES TO PETITIONER’S CASE BEFORE THE SANDIGANBAYAN.
II
WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE
PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.
III
WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST
PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF
SAID SECTION 3(e).
IV
WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER
SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF
1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE
CUSTODY OF A DETENTION PRISONER.
V
WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING
CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR
OFFICE.
VI
WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE
PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.22
For his part, petitioner Apelado, Sr. imputes the following errors
on the Sandiganbayan:
I
THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW
AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN
CONSPIRACY WITH HIS CO-ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF
CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE
ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE
11 OF THE REVISED PENAL CODE.
III
THE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED
AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED
BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE
MOST, SPECULATIVE.23
The issues raised by petitioner Ambil, Jr. can be summed up into
three: (1) Whether he is guilty beyond reasonable doubt of violating Section
3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take
personal custody of a detention prisoner; and (3) Whether he is entitled to the
justifying circumstance of fulfillment of duty under Article 11(5)24 of the RPC.
Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be
condensed into two: (1) Whether he is guilty beyond reasonable doubt of
violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the
justifying circumstance of obedience to an order issued by a superior for some
lawful purpose under Article 11(6)25 of the RPC.
Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A.
No. 3019 does not apply to his case because the provision contemplates only
transactions of a pecuniary nature. Since the law punishes a public officer who
extends unwarranted benefits to a private person, petitioner avers that he
cannot be held liable for extending a favor to Mayor Adalim, a public officer.
Further, he claims good faith in taking custody of the mayor pursuant to his
duty as a "Provincial Jailer" under the Administrative Code
of 1917. Considering this, petitioner believes himself entitled to the
justifying circumstance of fulfillment of duty or lawful exercise of duty.
Petitioner Apelado, Sr., on the other hand, denies allegations of
conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr.
defends that he was merely following the orders of a superior when he
transferred the detention of Adalim. As well, he invokes immunity from criminal
liability.
For the State, the Office of the Special Prosecutor (OSP) points
out the absence of jurisprudence that restricts the application of Section
3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains
that it is enough to show that in performing their functions, petitioners have
accorded undue preference to Adalim for liability to attach under the
provision. Further, the OSP maintains that Adalim is deemed a private party for
purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted
benefit redounded, not to his person as a mayor, but to his person as a
detention prisoner accused of murder. It suggests further that petitioners were
motivated by bad faith as evidenced by their refusal to turn over Adalim
despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates
petitioners’ lack of authority to take custody of a detention prisoner without
a court order. Hence, it concludes that petitioners are not entitled to the
benefit of any justifying circumstance.
After a careful review of this case, the Court finds the present
petitions bereft of merit.
Petitioners were charged with violation of Section 3(e) of R.A. No.
3019 or the Anti-Graft and Corrupt Practices Act which
provides:
Section. 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:
x x x x
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
In order to hold a person liable under this provision, the
following elements must concur: (1) the accused must be a public officer
discharging administrative, judicial or official functions; (2) he must have
acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and (3) his action caused any undue injury to any party, including
the government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.26
As to the first element, there is no question that petitioners are
public officers discharging official functions and that jurisdiction over them
lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public
officers charged with violation of the Anti-Graft Law is provided under Section
4 of Presidential Decree No. 1606,27 as amended by R.A. No. 8249.28 The pertinent portions of Section 4, P.D. No. 1606, as
amended, 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[;]
x x x x
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 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 jurisdiction as
provided in Batas Pambansa Blg. 129, as amended.
x x x x
Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil,
Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As
to him, a Certification29 from the Provincial Government Department Head of the HRMO
shows that his position as Provincial Warden is classified as Salary Grade 22.
Nonetheless, it is only when none of the accused are occupying positions
corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be
vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a
co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan
has jurisdiction. Accordingly, he was correctly tried jointly with said public
officer in the proper court which had exclusive original jurisdiction over them
– the Sandiganbayan.
The second element, for its part, describes the three ways by which
a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In Sison v. People,30 we defined "partiality," "bad faith" and
"gross negligence" as follows:
"Partiality" is synonymous with "bias" which
"excites a disposition to see and report matters as they are wished for
rather than as they are." "Bad faith does not simply connote bad
judgment or negligence; it imputes a dishonest purpose or some moral obliquity
and conscious doing of a wrong; a breach of sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud." "Gross
negligence has been so defined as negligence characterized by the want of even
slight care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but wilfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. It is
the omission of that care which even inattentive and thoughtless men never fail
to take on their own property." x x x31
In this case, we find that petitioners displayed manifest
partiality and evident bad faith in transferring the detention of Mayor Adalim
to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s
contention that he is authorized to transfer the detention of prisoners by
virtue of his power as the "Provincial Jailer" of Eastern Samar.
Section 28 of the Local Government Code draws the
extent of the power of local chief executives over the units of the Philippine
National Police within their jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of
the Philippine National Police.—The extent of operational supervision and
control of local chief executives over the police force, fire protection unit,
and jail management personnel assigned in their respective jurisdictions shall
be governed by the provisions of Republic Act Numbered Sixty-nine hundred
seventy-five (R.A. No. 6975), otherwise known as "The Department of the
Interior and Local Government Act of 1990," and the rules and
regulations issued pursuant thereto.
In particular, Section 61, Chapter 5 of R.A. No. 697532 on the Bureau of Jail Management and Penology provides:
Sec. 61. Powers and Functions. - The Jail Bureau shall
exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and
controlled by the provincial government within its jurisdiction,
whose expenses shall be subsidized by the National Government for not more than
three (3) years after the effectivity of this Act.
The power of control is the power of an officer to alter or modify
or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter.33 An officer in control lays down the rules in the doing of an
act. If they are not followed, he may, in his discretion, order the act undone
or re-done by his subordinate or he may even decide to do it himself.34
On the other hand, the power of supervision means "overseeing
or the authority of an officer to see to it that the subordinate officers
perform their duties."35 If the subordinate officers fail or neglect to fulfill their
duties, the official may take such action or step as prescribed by law to make
them perform their duties. Essentially, the power of supervision means no more
than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law.36 The supervisor or superintendent merely sees to it that the
rules are followed, but he does not lay down the rules, nor does he have
discretion to modify or replace them.37
Significantly, it is the provincial government and not the governor
alone which has authority to exercise control and supervision over provincial
jails. In any case, neither of said powers authorizes the doing of acts beyond
the parameters set by law. On the contrary, subordinates must be enjoined to
act within the bounds of law. In the event that the subordinate performs an
act ultra vires, rules may be laid down on how the act should be
done, but always in conformity with the law.
In a desperate attempt to stretch the scope of his powers,
petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative
Code of 1917 on Provincial jails in support. Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.—The governor of the province shall be charged
with the keeping of the provincial jail, and it shall be his duty to administer
the same in accordance with law and the regulations prescribed for the
government of provincial prisons. The immediate custody and
supervision of the jail may be committed to the care of a jailer to be
appointed by the provincial governor. The position of jailer shall be regarded
as within the unclassified civil service but may be filled in the manner in
which classified positions are filled, and if so filled, the appointee shall be
entitled to all the benefits and privileges of classified employees, except
that he shall hold office only during the term of office of the appointing
governor and until a successor in the office of the jailer is appointed and
qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial
board and at the expense of the province, supply proper food and clothing for
the prisoners; though the provincial board may, in its discretion,
let the contract for the feeding of the prisoners to some other person. (Emphasis
supplied.)
This provision survived the advent of the Administrative
Code of 1987. But again, nowhere did said provision designate the
provincial governor as the "provincial jailer," or even slightly
suggest that he is empowered to take personal custody of prisoners. What is
clear from the cited provision is that the provincial governor’s duty as a jail
keeper is confined to the administration of the jail and the procurement of
food and clothing for the prisoners. After all, administrative acts pertain only
to those acts which are necessary to be done to carry out legislative policies
and purposes already declared by the legislative body or such as are devolved
upon it38 by the Constitution. Therefore, in the exercise of his
administrative powers, the governor can only enforce the law but not supplant
it.
Besides, the only reference to a transfer of prisoners in said
article is found in Section 173739 under which prisoners may be turned over to the jail of the
neighboring province in case the provincial jail be insecure or insufficient to
accommodate all provincial prisoners. However, this provision has been
superseded by Section 3, Rule 114 of the Revised Rules of
Criminal Procedure, as amended. Section 3, Rule 114 provides:
SEC. 3. No release or transfer except on court order or
bail.-No person under detention by legal process shall be released or
transferred except upon order of the court or when he is admitted to bail.
Indubitably, the power to order the release or transfer of a person
under detention by legal process is vested in the court, not in the provincial
government, much less the governor. This was amply clarified by Asst. Sec.
Ingeniero in his communication40 dated October 6, 1998 addressed to petitioner Ambil, Jr.
Asst. Sec. Ingeniero wrote:
06 October 1996
GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar
Dear Sir:
This has reference to the letter of Atty. Edwin B. Docena, and the
reports earlier received by this Department, relative to your alleged action in
taking into custody Mayor Francisco "Aising" Adalim of Taft, that
province, who has been previously arrested by virtue by a warrant of arrest
issued in Criminal Case No. 10963.
If the report is true, it appears that your actuation is not in
accord with the provision of Section 3, Rule 113 of the Rules of Court, which
mandates that an arrested person be delivered to the nearest police station or
jail.
Moreover, invoking Section 61 of RA 6975 as legal basis in taking
custody of the accused municipal mayor is misplaced. Said section merely speaks
of the power of supervision vested unto the provincial governor over provincial
jails. It does not, definitely, include the power to take in custody any person
in detention.
In view of the foregoing, you are hereby enjoined to conduct
yourself within the bounds of law and to immediately deliver Mayor Adalim to
the provincial jail in order to avoid legal complications.
Please be guided accordingly.
Very truly yours,
(SGD.)
JESUS I. INGENIERO
Assistant Secretary
Still, petitioner Ambil, Jr. insisted on his supposed authority as
a "provincial jailer." Said petitioner’s usurpation of the court's
authority, not to mention his open and willful defiance to official advice in
order to accommodate a former political party mate,41 betray his unmistakable bias and the evident bad faith that
attended his actions.
Likewise amply established beyond reasonable doubt is the third
element of the crime. As mentioned above, in order to hold a person liable for
violation of Section 3(e), R.A. No. 3019, it is required that the act
constituting the offense consist of either (1) causing undue injury to any
party, including the government, or (2) giving any private party any
unwarranted benefits, advantage or preference in the discharge by the accused
of his official, administrative or judicial functions.
In the case at hand, the Information specifically accused
petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a
public officer charged with murder, by causing his release from prison and
detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil,
Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on
two points. First, Section 3(e) is not applicable to him allegedly because the
last sentence thereof provides that the "provision shall apply to officers
and employees of offices or government corporations charged with the grant of
licenses, permits or other concessions" and he is not such government
officer or employee. Second, the purported unwarranted benefit was accorded not
to a private party but to a public officer.
However, as regards his first contention, it appears that
petitioner Ambil, Jr. has obviously lost sight, if he is not altogether
unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a prosecution for violation of Section
3(e) of the Anti-Graft Law will lie regardless of whether or not the accused
public officer is "charged with the grant of licenses or permits or other
concessions." Following is an excerpt of what we said in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers (sic) declared unlawful. Its reference to
"any public officer" is without distinction or qualification and it
specifies the acts declared unlawful. We agree with the view adopted by the
Solicitor General that the last sentence of paragraph [Section 3] (e) is
intended to make clear the inclusion of officers and employees of officers
(sic) or government corporations which, under the ordinary concept of
"public officers" may not come within the term. It is a strained
construction of the provision to read it as applying exclusively to public
officers charged with the duty of granting licenses or permits or other
concessions.43 (Italics supplied.)
In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of said
provision will lie regardless of whether the accused public officer is charged
with the grant of licenses or permits or other concessions.45
Meanwhile, regarding petitioner Ambil, Jr.’s second contention,
Section 2(b) of R.A. No. 3019 defines a "public officer" to include
elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exemption service receiving
compensation, even nominal from the government. Evidently, Mayor Adalim is one.
But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a
public officer of unwarranted benefits to a private party, does the fact that
Mayor Adalim was the recipient of such benefits take petitioners’ case beyond
the ambit of said law?
We believe not.
In drafting the Anti-Graft Law, the lawmakers opted to use
"private party" rather than "private person" to describe
the recipient of the unwarranted benefits, advantage or preference for a
reason. The term "party" is a technical word having a precise meaning
in legal parlance46 as distinguished from "person" which, in general
usage, refers to a human being.47 Thus, a private person simply pertains to one who is not a
public officer. While a private party is more comprehensive in scope to mean
either a private person or a public officer acting in a private capacity to
protect his personal interest.
In the present case, when petitioners transferred Mayor Adalim from
the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they
accorded such privilege to Adalim, not in his official capacity as a mayor, but
as a detainee charged with murder. Thus, for purposes of applying the
provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.
Moreover, in order to be found guilty under the second mode, it
suffices that the accused has given unjustified favor or benefit to another in
the exercise of his official, administrative or judicial functions.48 The word "unwarranted" means lacking adequate or
official support; unjustified; unauthorized or without justification or
adequate reason. "Advantage" means a more favorable or improved
position or condition; benefit, profit or gain of any kind; benefit from some
course of action. "Preference" signifies priority or higher
evaluation or desirability; choice or estimation above another.49
Without a court order, petitioners transferred Adalim and detained
him in a place other than the provincial jail. The latter was housed in much
more comfortable quarters, provided better nourishment, was free to move about
the house and watch television. Petitioners readily extended these benefits to
Adalim on the mere representation of his lawyers that the mayor’s life would be
put in danger inside the provincial jail.
As the Sandiganbayan ruled, however, petitioners were unable to
establish the existence of any risk on Adalim’s safety. To be sure, the latter
would not be alone in having unfriendly company in lockup. Yet, even if we
treat Akyatan’s gesture of raising a closed fist at Adalim as a threat of
aggression, the same would still not constitute a special and compelling reason
to warrant Adalim’s detention outside the provincial jail. For one, there were
nipa huts within the perimeter fence of the jail which could have been used to
separate Adalim from the rest of the prisoners while the isolation cell was
undergoing repair. Anyhow, such repair could not have exceeded the 85 days that
Adalim stayed in petitioner Ambil, Jr.’s house. More importantly, even if
Adalim could have proven the presence of an imminent peril on his person to
petitioners, a court order was still indispensable for his transfer.
The foregoing, indeed, negates the application of the justifying
circumstances claimed by petitioners.
Specifically, petitioner Ambil, Jr. invokes the justifying
circumstance of fulfillment of duty or lawful exercise of right or office.
Under paragraph 5, Article 11 of the RPC, any person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not
incur any criminal liability. In order for this justifying circumstance to
apply, two requisites must be satisfied: (1) the accused acted in the
performance of a duty or in the lawful exercise of a right or office; and (2)
the injury caused or the offense committed be the necessary consequence of
the due performance of duty or the lawful exercise of such
right or office.50 Both requisites are lacking in petitioner Ambil, Jr.’s case.
As we have earlier determined, petitioner Ambil, Jr. exceeded his
authority when he ordered the transfer and detention of Adalim at his house.
Needless to state, the resulting violation of the Anti-Graft Law did not
proceed from the due performance of his duty or lawful exercise of his office.
In like manner, petitioner Apelado, Sr. invokes the justifying
circumstance of obedience to an order issued for some lawful purpose. Under
paragraph 6, Article 11 of the RPC, any person who acts in obedience to an
order issued by a superior for some lawful purpose does not incur any criminal
liability. For this justifying circumstance to apply, the following requisites
must be present: (1) an order has been issued by a superior; (2) such order
must be for some lawful purpose; and (3) the means used by the subordinate to
carry out said order is lawful.51 Only the first requisite is present in this case.
While the order for Adalim’s transfer emanated from petitioner
Ambil, Jr., who was then Governor, neither said order nor the means employed by
petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the
Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order, transported him
to the house of petitioner Ambil, Jr. This makes him liable as a principal by
direct participation under Article 17(1)52 of the RPC.
An accepted badge of conspiracy is when the accused by their acts
aimed at the same object, one performing one part of and another performing
another so as to complete it with a view to the attainment of the same object,
and their acts although apparently independent were in fact concerted and
cooperative, indicating closeness of personal association, concerted action and
concurrence of sentiments.53
Conspiracy was sufficiently demonstrated by petitioner Apelado,
Sr.’s willful cooperation in executing petitioner Ambil, Jr.’s order to move
Adalim from jail, despite the absence of a court order. Petitioner Apelado,
Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The
Rule requiring a court order to transfer a person under detention by legal
process is elementary. Truth be told, even petitioner governor who is
unschooled in the intricacies of the law expressed reservations on his power to
transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and
Apelado, Sr. resulting in the violation charged, makes them equally responsible
as conspirators.
As regards the penalty imposed upon petitioners, Section 9(a) of
R.A. No. 3019 punishes a public officer or a private person who violates
Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years
and one (1) month to not more than fifteen (15) years and perpetual
disqualification from public office. Under Section 1 of the Indeterminate
Sentence Law or Act No. 4103, as amended by Act No. 4225, if the
offense is punished by a special law, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.1avvphi1
Thus, the penalty imposed by the Sandiganbayan upon petitioner
Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day
to twelve (12) years and four (4) months is in accord with law. As a
co-principal without the benefit of an incomplete justifying circumstance to
his credit, petitioner Apelado, Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of the
Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil,
Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating
Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is,
likewise, sentenced to an indeterminate penalty of imprisonment for nine (9)
years, eight (8) months and one (1) day to twelve (12) years and four (4)
months.
With costs against the petitioners.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
|
ANTONIO T. CARPIO*
Associate Justice
|
LUCAS P. BERSAMIN
Associate Justice
|
MARIANO C. DEL CASTILLO
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987
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.
RENATO C. CORONA
Chief Justice
Footnotes
* Designated additional member per Raffle dated July 4, 2011
in lieu of Associate Justice Teresita J. Leonardo-De Castro who recused herself
due to prior action in the Sandiganbayan.
1 Rollo (G.R. No. 175457), pp. 8-34.
2 Rollo (G.R. No. 175482) pp. 8-15.
3 Id. at 16-24; rollo (G.R. No. 175457), pp.
35-43. Penned by Associate Justice Roland B. Jurado with Presiding Justice
Teresita J. Leonardo-De Castro (now a member of this Court) and Associate
Justice Diosdado M. Peralta (also now a member of this Court) concurring.
4 Id. at 26-44; id. at 44-62.
5 Exhibit "D". Dated September 11, 1998.
6 Records, Vol. I, pp. 10-18.
7 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:
x x x x
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
x x x x
8 Records, Vol. I, pp. 64-65.
9 Id. at 1-2.
10 Id. at 102-104.
11 Art. 156. Delivering prisoners from jail. - The
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any person
who shall remove from any jail or penal establishment any person confined
therein or shall help the escape of such person, by means of violence,
intimidation or bribery. If other means are used, the penalty of arresto
mayor shall be imposed.
x x x x
12 Records, Vol. I, pp. 100-101.
13 Id. at 100.
14 Id. at 314-316.
15 TSN, October 8, 2001, pp. 7, 23-30, 33.
16 TSN, October 9, 2001, pp. 5-7, 22-24.
17 TSN, March 11, 2002, pp. 4-6, 16, 21.
18 TSN, March 12, 2002, pp. 11-17, 32.
19 Id. at 21, 60-61.
20 Supra note 3.
21 Sec. 3, Rule 114, Rules of Court.
22 Rollo (G.R. No. 175457), pp. 16-17.
23 Rollo (G.R. No. 175482), pp. 11-12.
24 Art. 11. Justifying circumstances. - The
following do not incur any criminal liability:
x x x x
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
x x x x
25 Art. 11. Justifying circumstances. - The
following do not incur any criminal liability:
x x x x
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
26 Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA
47, 53-54.
27 Revising Presidential Decree No. 1486 Creating a Special
Court to be known as "Sandiganbayan" and for Other Purposes.
28 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.
29 Records, Vol. I, p. 43.
30 G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA 670.
31 Id. at 680.
32 An Act Establishing the Philippine National Police Under a
Reorganized Department of the Interior and Local Government, and for Other
Purposes.
33 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140-141.
34 Id. at 142.
35 Joson v. Torres, G.R. No. 131255, May 20, 1998, 290 SCRA 279, 301.
36 Id.
37 Drilon v. Lim, supra at 142.
38 H.C. Black, Black’s Law Dictionary, 1979 Ed., 42.
39 SEC. 1737. Transfer of prisoners to jail of
neighboring province.-In case there should be no jail in any province, or
in case a provincial jail of any province be insecure or insufficient for the
accommodation of all provincial prisoners, it shall be the duty of the
provincial board to make arrangements for the safe-keeping of the prisoners of
the province with the provincial board of some neighboring province in the jail
of such neighboring province, and when such arrangement has been made it shall
be the duty of the officer having custody of the prisoner to commit him to the
jail of such neighboring province, and he shall be there detained with the same
legal effect as though confined in the jail of the province where the offense
for which he was arrested was committed.
40 Exhibit "Q."
41 TSN, October 8, 2001, p. 55.
42 Nos. L-51065-72, June 30, 1987, 151 SCRA 399.
43 Id. at 405.
44 G.R. No. 134493, August 16, 2005, 467 SCRA 52.
45 Id. at 60.
46 H.C. Black, Black’s Law Dictionary, 1979 Ed., 1010.
47 Id. at 1028.
48 Sison v. People, supra at 682.
49 Id. at 681-682.
50 Valeroso v. People, G.R. No. 149718, September 29, 2003, 412 SCRA 257, 261.
51 L.B. Reyes, The Revised Penal Code, Book One, p. 213.
52 Art. 17. Principals. - The following are
considered principals:
1. Those who take a direct part in the execution of the act;
x x x x
53 People v. Serrano, G.R. No. 179038, May 6, 2010, 620 SCRA 327, 336-337.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
FIRST DIVISION
G.R. No. 175457
July 6, 2011
RUPERTO A. AMBIL, JR., Petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175482
ALEXANDRINO R. APELADO,
SR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
VILLARAMA, JR., J.:
Before us are two consolidated petitions for review on certiorari
filed by petitioner Ruperto A. Ambil, Jr.1 and petitioner Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16, 2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case
No. 25892.
The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar
Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the
Ombudsman, praying for an investigation into the alleged transfer of then Mayor
Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the
provincial jail of Eastern Samar to the residence of petitioner, then Governor
Ruperto A. Ambil, Jr. In a Report6 dated January 4, 1999, the National Bureau of Investigation
(NBI) recommended the filing of criminal charges against petitioner Ambil, Jr.
for violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act, as amended. On September 22, 1999, the new
President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the
IBP is no longer interested in pursuing the case against petitioners. Thus, he
recommended the dismissal of the complaint against petitioners.8
Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and
Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A.
No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office
of the Ombudsman issued a Memorandum10 dated August 4, 2000, recommending the dismissal of the
complaint as regards Balano and the amendment of the Information to include the
charge of Delivering Prisoners from Jail under Article 15611 of the Revised Penal Code, as amended, (RPC)
against the remaining accused. The Amended Information12 reads:
That on or about the 6th day of September 1998, and for sometime
prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, [the]
above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial
Governor of Eastern Samar, and Alexandrino R. Apelado, being then the
Provincial Warden of Eastern Samar, both having been public officers, duly
elected, appointed and qualified as such, committing the offense in relation to
office, conniving and confederating together and mutually helping x x x each
other, with deliberate intent, manifest partiality and evident bad faith, did
then and there wilfully, unlawfully and criminally order and cause the release
from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused
in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued
by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan,
Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco
Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said Mayor
Adalim to stay at accused Ambil’s residence for a period of Eighty-Five (85)
days, more or less which act was done without any court order, thus accused in
the performance of official functions had given unwarranted benefits and
advantage to detainee Mayor Francisco Adalim to the prejudice of the
government.
CONTRARY TO LAW.
BAIL BOND RECOMMENDED: P30,000.00 each.13
On arraignment, petitioners pleaded not guilty and posted bail.
At the pre-trial, petitioners admitted the allegations in the
Information. They reason, however, that Adalim’s transfer was justified
considering the imminent threats upon his person and the dangers posed by his
detention at the provincial jail. According to petitioners, Adalim’s sister,
Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail
where Mayor Adalim was to be held.
Consequently, the prosecution no longer offered testimonial
evidence and rested its case after the admission of its documentary exhibits.
Petitioners filed a Motion for Leave to File Demurrer to Evidence with
Reservation to Present Evidence in Case of Denial14 but the same was denied.
At the trial, petitioners presented three witnesses: petitioner
Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim.
Petitioner Ambil, Jr. testified that he was the Governor of Eastern
Samar from 1998 to 2001. According to him, it was upon the advice of Adalim’s
lawyers that he directed the transfer of Adalim’s detention to his home. He
cites poor security in the provincial jail as the primary reason for taking
personal custody of Adalim considering that the latter would be in the company
of inmates who were put away by his sister and guards identified with his
political opponents.15
For her part, Atty. White stated that she is the District Public
Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how
Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern
Samar, on September 6, 1998. According to Atty. White, she sought the
alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein
petitioner Apelado, Sr. failed to guarantee the mayor’s safety.16
Meanwhile, Francisco Adalim introduced himself as the Mayor of
Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection
with a murder case filed against him in the Regional Trial Court (RTC) of
Borongan, Eastern Samar. Adalim confirmed Atty. White’s account that he spotted
inmates who served as bodyguards for, or who are associated with, his political
rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan,
gesture to him with a raised clenched fist. Sensing danger, he called on his
sister for help. Adalim admitted staying at Ambil, Jr.’s residence for almost
three months before he posted bail after the charge against him was downgraded
to homicide.17
Petitioner Apelado, Sr. testified that he was the Provincial Jail
Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe
Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly,
Atty. White was contesting the legality of Mayor Adalim’s arrest and arguing
with the jail guards against booking him for detention. At the provincial jail,
petitioner was confronted by Atty. White who informed him that he was under the
governor, in the latter’s capacity as a provincial jailer. Petitioner claims
that it is for this reason that he submitted to the governor’s order to
relinquish custody of Adalim.18
Further, petitioner Apelado, Sr. described the physical condition
of the jail to be dilapidated and undermanned. According to him, only two
guards were incharge of looking after 50 inmates. There were two cells in the
jail, each housing 25 inmates, while an isolation cell of 10 square meters was
unserviceable at the time. Also, there were several nipa huts within the
perimeter for use during conjugal visits.19
On September 16, 2005, the Sandiganbayan, First Division,
promulgated the assailed Decision20 finding petitioners guilty of violating Section 3(e) of R.A.
No. 3019. The court ruled that in moving Adalim to a private residence,
petitioners have conspired to accord him unwarranted benefits in the form of
more comfortable quarters with access to television and other privileges that
other detainees do not enjoy. It stressed that under the Rules, no person under
detention by legal process shall be released or transferred except upon order
of the court or when he is admitted to bail.21
The Sandiganbayan brushed aside petitioners’ defense that Adalim’s
transfer was made to ensure his safety. It observed that petitioner Ambil, Jr.
did not personally verify any actual threat on Adalim’s life but relied simply
on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out the
availability of an isolation cell and nipa huts within the 10-meter-high
perimeter fence of the jail which could have been used to separate Adalim from
other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over
Adalim despite advice from Assistant Secretary Jesus Ingeniero of the
Department of Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to
an indeterminate penalty of imprisonment for nine (9) years, eight (8) months
and one (1) day to twelve (12) years and four (4) months. In favor of
petitioner Apelado, Sr., the court appreciated the incomplete justifying
circumstance of obedience to a superior order and sentenced him to imprisonment
for six (6) years and one (1) month to nine (9) years and eight (8) months.
Hence, the present petitions.
Petitioner Ambil, Jr. advances the following issues for our
consideration:
I
WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED,
APPLIES TO PETITIONER’S CASE BEFORE THE SANDIGANBAYAN.
II
WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE
PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.
III
WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST
PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF
SAID SECTION 3(e).
IV
WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER
SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF
1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE
CUSTODY OF A DETENTION PRISONER.
V
WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING
CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR
OFFICE.
VI
WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE
PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.22
For his part, petitioner Apelado, Sr. imputes the following errors
on the Sandiganbayan:
I
THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW
AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN
CONSPIRACY WITH HIS CO-ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF
CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE
ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE
11 OF THE REVISED PENAL CODE.
III
THE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED
AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED
BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE
MOST, SPECULATIVE.23
The issues raised by petitioner Ambil, Jr. can be summed up into
three: (1) Whether he is guilty beyond reasonable doubt of violating Section
3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take
personal custody of a detention prisoner; and (3) Whether he is entitled to the
justifying circumstance of fulfillment of duty under Article 11(5)24 of the RPC.
Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be
condensed into two: (1) Whether he is guilty beyond reasonable doubt of
violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the
justifying circumstance of obedience to an order issued by a superior for some
lawful purpose under Article 11(6)25 of the RPC.
Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A.
No. 3019 does not apply to his case because the provision contemplates only
transactions of a pecuniary nature. Since the law punishes a public officer who
extends unwarranted benefits to a private person, petitioner avers that he
cannot be held liable for extending a favor to Mayor Adalim, a public officer.
Further, he claims good faith in taking custody of the mayor pursuant to his
duty as a "Provincial Jailer" under the Administrative Code
of 1917. Considering this, petitioner believes himself entitled to the
justifying circumstance of fulfillment of duty or lawful exercise of duty.
Petitioner Apelado, Sr., on the other hand, denies allegations of
conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr.
defends that he was merely following the orders of a superior when he
transferred the detention of Adalim. As well, he invokes immunity from criminal
liability.
For the State, the Office of the Special Prosecutor (OSP) points
out the absence of jurisprudence that restricts the application of Section
3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains
that it is enough to show that in performing their functions, petitioners have
accorded undue preference to Adalim for liability to attach under the
provision. Further, the OSP maintains that Adalim is deemed a private party for
purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted
benefit redounded, not to his person as a mayor, but to his person as a
detention prisoner accused of murder. It suggests further that petitioners were
motivated by bad faith as evidenced by their refusal to turn over Adalim
despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates
petitioners’ lack of authority to take custody of a detention prisoner without
a court order. Hence, it concludes that petitioners are not entitled to the
benefit of any justifying circumstance.
After a careful review of this case, the Court finds the present
petitions bereft of merit.
Petitioners were charged with violation of Section 3(e) of R.A. No.
3019 or the Anti-Graft and Corrupt Practices Act which
provides:
Section. 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:
x x x x
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
In order to hold a person liable under this provision, the
following elements must concur: (1) the accused must be a public officer
discharging administrative, judicial or official functions; (2) he must have
acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and (3) his action caused any undue injury to any party, including
the government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.26
As to the first element, there is no question that petitioners are
public officers discharging official functions and that jurisdiction over them
lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public
officers charged with violation of the Anti-Graft Law is provided under Section
4 of Presidential Decree No. 1606,27 as amended by R.A. No. 8249.28 The pertinent portions of Section 4, P.D. No. 1606, as
amended, 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[;]
x x x x
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 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 jurisdiction as
provided in Batas Pambansa Blg. 129, as amended.
x x x x
Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil,
Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As
to him, a Certification29 from the Provincial Government Department Head of the HRMO
shows that his position as Provincial Warden is classified as Salary Grade 22.
Nonetheless, it is only when none of the accused are occupying positions
corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be
vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a
co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan
has jurisdiction. Accordingly, he was correctly tried jointly with said public
officer in the proper court which had exclusive original jurisdiction over them
– the Sandiganbayan.
The second element, for its part, describes the three ways by which
a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In Sison v. People,30 we defined "partiality," "bad faith" and
"gross negligence" as follows:
"Partiality" is synonymous with "bias" which
"excites a disposition to see and report matters as they are wished for
rather than as they are." "Bad faith does not simply connote bad
judgment or negligence; it imputes a dishonest purpose or some moral obliquity
and conscious doing of a wrong; a breach of sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud." "Gross
negligence has been so defined as negligence characterized by the want of even
slight care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but wilfully and intentionally with a conscious indifference
to consequences in so far as other persons may be affected. It is the omission
of that care which even inattentive and thoughtless men never fail to take on
their own property." x x x31
In this case, we find that petitioners displayed manifest
partiality and evident bad faith in transferring the detention of Mayor Adalim
to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s
contention that he is authorized to transfer the detention of prisoners by
virtue of his power as the "Provincial Jailer" of Eastern Samar.
Section 28 of the Local Government Code draws the
extent of the power of local chief executives over the units of the Philippine
National Police within their jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of
the Philippine National Police.—The extent of operational supervision and
control of local chief executives over the police force, fire protection unit,
and jail management personnel assigned in their respective jurisdictions shall
be governed by the provisions of Republic Act Numbered Sixty-nine hundred
seventy-five (R.A. No. 6975), otherwise known as "The Department of the
Interior and Local Government Act of 1990," and the rules and
regulations issued pursuant thereto.
In particular, Section 61, Chapter 5 of R.A. No. 697532 on the Bureau of Jail Management and Penology provides:
Sec. 61. Powers and Functions. - The Jail Bureau shall
exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and
controlled by the provincial government within its jurisdiction,
whose expenses shall be subsidized by the National Government for not more than
three (3) years after the effectivity of this Act.
The power of control is the power of an officer to alter or modify
or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter.33 An officer in control lays down the rules in the doing of an
act. If they are not followed, he may, in his discretion, order the act undone
or re-done by his subordinate or he may even decide to do it himself.34
On the other hand, the power of supervision means "overseeing
or the authority of an officer to see to it that the subordinate officers
perform their duties."35 If the subordinate officers fail or neglect to fulfill their
duties, the official may take such action or step as prescribed by law to make
them perform their duties. Essentially, the power of supervision means no more
than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law.36 The supervisor or superintendent merely sees to it that the
rules are followed, but he does not lay down the rules, nor does he have
discretion to modify or replace them.37
Significantly, it is the provincial government and not the governor
alone which has authority to exercise control and supervision over provincial
jails. In any case, neither of said powers authorizes the doing of acts beyond
the parameters set by law. On the contrary, subordinates must be enjoined to
act within the bounds of law. In the event that the subordinate performs an
act ultra vires, rules may be laid down on how the act should be
done, but always in conformity with the law.
In a desperate attempt to stretch the scope of his powers,
petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative
Code of 1917 on Provincial jails in support. Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.—The governor of the province shall be charged
with the keeping of the provincial jail, and it shall be his duty to administer
the same in accordance with law and the regulations prescribed for the
government of provincial prisons. The immediate custody and
supervision of the jail may be committed to the care of a jailer to be
appointed by the provincial governor. The position of jailer shall be regarded
as within the unclassified civil service but may be filled in the manner in
which classified positions are filled, and if so filled, the appointee shall be
entitled to all the benefits and privileges of classified employees, except
that he shall hold office only during the term of office of the appointing
governor and until a successor in the office of the jailer is appointed and
qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial
board and at the expense of the province, supply proper food and clothing for
the prisoners; though the provincial board may, in its discretion,
let the contract for the feeding of the prisoners to some other person.
(Emphasis supplied.)
This provision survived the advent of the Administrative
Code of 1987. But again, nowhere did said provision designate the
provincial governor as the "provincial jailer," or even slightly
suggest that he is empowered to take personal custody of prisoners. What is
clear from the cited provision is that the provincial governor’s duty as a jail
keeper is confined to the administration of the jail and the procurement of
food and clothing for the prisoners. After all, administrative acts pertain
only to those acts which are necessary to be done to carry out legislative
policies and purposes already declared by the legislative body or such as are
devolved upon it38 by the Constitution. Therefore, in the exercise of his
administrative powers, the governor can only enforce the law but not supplant
it.
Besides, the only reference to a transfer of prisoners in said
article is found in Section 173739 under which prisoners may be turned over to the jail of the
neighboring province in case the provincial jail be insecure or insufficient to
accommodate all provincial prisoners. However, this provision has been
superseded by Section 3, Rule 114 of the Revised Rules of
Criminal Procedure, as amended. Section 3, Rule 114 provides:
SEC. 3. No release or transfer except on court order or
bail.-No person under detention by legal process shall be released or
transferred except upon order of the court or when he is admitted to bail.
Indubitably, the power to order the release or transfer of a person
under detention by legal process is vested in the court, not in the provincial
government, much less the governor. This was amply clarified by Asst. Sec.
Ingeniero in his communication40 dated October 6, 1998 addressed to petitioner Ambil, Jr.
Asst. Sec. Ingeniero wrote:
06 October 1996
GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar
Dear Sir:
This has reference to the letter of Atty. Edwin B. Docena, and the
reports earlier received by this Department, relative to your alleged action in
taking into custody Mayor Francisco "Aising" Adalim of Taft, that
province, who has been previously arrested by virtue by a warrant of arrest
issued in Criminal Case No. 10963.
If the report is true, it appears that your actuation is not in
accord with the provision of Section 3, Rule 113 of the Rules of Court, which
mandates that an arrested person be delivered to the nearest police station or
jail.
Moreover, invoking Section 61 of RA 6975 as legal basis in taking
custody of the accused municipal mayor is misplaced. Said section merely speaks
of the power of supervision vested unto the provincial governor over provincial
jails. It does not, definitely, include the power to take in custody any person
in detention.
In view of the foregoing, you are hereby enjoined to conduct
yourself within the bounds of law and to immediately deliver Mayor Adalim to
the provincial jail in order to avoid legal complications.
Please be guided accordingly.
Very truly yours,
(SGD.)
JESUS I. INGENIERO
Assistant Secretary
Still, petitioner Ambil, Jr. insisted on his supposed authority as
a "provincial jailer." Said petitioner’s usurpation of the court's
authority, not to mention his open and willful defiance to official advice in
order to accommodate a former political party mate,41 betray his unmistakable bias and the evident bad faith that
attended his actions.
Likewise amply established beyond reasonable doubt is the third
element of the crime. As mentioned above, in order to hold a person liable for
violation of Section 3(e), R.A. No. 3019, it is required that the act
constituting the offense consist of either (1) causing undue injury to any
party, including the government, or (2) giving any private party any
unwarranted benefits, advantage or preference in the discharge by the accused
of his official, administrative or judicial functions.
In the case at hand, the Information specifically accused
petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a
public officer charged with murder, by causing his release from prison and
detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil,
Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on
two points. First, Section 3(e) is not applicable to him allegedly because the
last sentence thereof provides that the "provision shall apply to officers
and employees of offices or government corporations charged with the grant of
licenses, permits or other concessions" and he is not such government
officer or employee. Second, the purported unwarranted benefit was accorded not
to a private party but to a public officer.
However, as regards his first contention, it appears that
petitioner Ambil, Jr. has obviously lost sight, if he is not altogether
unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a prosecution for violation of Section
3(e) of the Anti-Graft Law will lie regardless of whether or not the accused
public officer is "charged with the grant of licenses or permits or other
concessions." Following is an excerpt of what we said in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers (sic) declared unlawful. Its reference to
"any public officer" is without distinction or qualification and it
specifies the acts declared unlawful. We agree with the view adopted by the
Solicitor General that the last sentence of paragraph [Section 3] (e) is
intended to make clear the inclusion of officers and employees of officers
(sic) or government corporations which, under the ordinary concept of
"public officers" may not come within the term. It is a strained
construction of the provision to read it as applying exclusively to public
officers charged with the duty of granting licenses or permits or other
concessions.43 (Italics supplied.)
In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of said
provision will lie regardless of whether the accused public officer is charged
with the grant of licenses or permits or other concessions.45
Meanwhile, regarding petitioner Ambil, Jr.’s second contention,
Section 2(b) of R.A. No. 3019 defines a "public officer" to include
elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exemption service receiving
compensation, even nominal from the government. Evidently, Mayor Adalim is one.
But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a
public officer of unwarranted benefits to a private party, does the fact that
Mayor Adalim was the recipient of such benefits take petitioners’ case beyond
the ambit of said law?
We believe not.
In drafting the Anti-Graft Law, the lawmakers opted to use
"private party" rather than "private person" to describe
the recipient of the unwarranted benefits, advantage or preference for a
reason. The term "party" is a technical word having a precise meaning
in legal parlance46 as distinguished from "person" which, in general
usage, refers to a human being.47 Thus, a private person simply pertains to one who is not a
public officer. While a private party is more comprehensive in scope to mean
either a private person or a public officer acting in a private capacity to
protect his personal interest.
In the present case, when petitioners transferred Mayor Adalim from
the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they
accorded such privilege to Adalim, not in his official capacity as a mayor, but
as a detainee charged with murder. Thus, for purposes of applying the provisions
of Section 3(e), R.A. No. 3019, Adalim was a private party.
Moreover, in order to be found guilty under the second mode, it
suffices that the accused has given unjustified favor or benefit to another in
the exercise of his official, administrative or judicial functions.48 The word "unwarranted" means lacking adequate or
official support; unjustified; unauthorized or without justification or
adequate reason. "Advantage" means a more favorable or improved
position or condition; benefit, profit or gain of any kind; benefit from some
course of action. "Preference" signifies priority or higher evaluation
or desirability; choice or estimation above another.49
Without a court order, petitioners transferred Adalim and detained
him in a place other than the provincial jail. The latter was housed in much
more comfortable quarters, provided better nourishment, was free to move about
the house and watch television. Petitioners readily extended these benefits to
Adalim on the mere representation of his lawyers that the mayor’s life would be
put in danger inside the provincial jail.
As the Sandiganbayan ruled, however, petitioners were unable to
establish the existence of any risk on Adalim’s safety. To be sure, the latter
would not be alone in having unfriendly company in lockup. Yet, even if we
treat Akyatan’s gesture of raising a closed fist at Adalim as a threat of
aggression, the same would still not constitute a special and compelling reason
to warrant Adalim’s detention outside the provincial jail. For one, there were
nipa huts within the perimeter fence of the jail which could have been used to
separate Adalim from the rest of the prisoners while the isolation cell was
undergoing repair. Anyhow, such repair could not have exceeded the 85 days that
Adalim stayed in petitioner Ambil, Jr.’s house. More importantly, even if
Adalim could have proven the presence of an imminent peril on his person to
petitioners, a court order was still indispensable for his transfer.
The foregoing, indeed, negates the application of the justifying
circumstances claimed by petitioners.
Specifically, petitioner Ambil, Jr. invokes the justifying
circumstance of fulfillment of duty or lawful exercise of right or office.
Under paragraph 5, Article 11 of the RPC, any person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not
incur any criminal liability. In order for this justifying circumstance to
apply, two requisites must be satisfied: (1) the accused acted in the
performance of a duty or in the lawful exercise of a right or office; and (2)
the injury caused or the offense committed be the necessary consequence of
the due performance of duty or the lawful exercise of such
right or office.50 Both requisites are lacking in petitioner Ambil, Jr.’s case.
As we have earlier determined, petitioner Ambil, Jr. exceeded his
authority when he ordered the transfer and detention of Adalim at his house.
Needless to state, the resulting violation of the Anti-Graft Law did not
proceed from the due performance of his duty or lawful exercise of his office.
In like manner, petitioner Apelado, Sr. invokes the justifying
circumstance of obedience to an order issued for some lawful purpose. Under
paragraph 6, Article 11 of the RPC, any person who acts in obedience to an
order issued by a superior for some lawful purpose does not incur any criminal
liability. For this justifying circumstance to apply, the following requisites
must be present: (1) an order has been issued by a superior; (2) such order
must be for some lawful purpose; and (3) the means used by the subordinate to
carry out said order is lawful.51 Only the first requisite is present in this case.
While the order for Adalim’s transfer emanated from petitioner
Ambil, Jr., who was then Governor, neither said order nor the means employed by
petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the
Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order, transported him
to the house of petitioner Ambil, Jr. This makes him liable as a principal by
direct participation under Article 17(1)52 of the RPC.
An accepted badge of conspiracy is when the accused by their acts
aimed at the same object, one performing one part of and another performing
another so as to complete it with a view to the attainment of the same object,
and their acts although apparently independent were in fact concerted and
cooperative, indicating closeness of personal association, concerted action and
concurrence of sentiments.53
Conspiracy was sufficiently demonstrated by petitioner Apelado,
Sr.’s willful cooperation in executing petitioner Ambil, Jr.’s order to move
Adalim from jail, despite the absence of a court order. Petitioner Apelado,
Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The
Rule requiring a court order to transfer a person under detention by legal
process is elementary. Truth be told, even petitioner governor who is
unschooled in the intricacies of the law expressed reservations on his power to
transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and
Apelado, Sr. resulting in the violation charged, makes them equally responsible
as conspirators.
As regards the penalty imposed upon petitioners, Section 9(a) of
R.A. No. 3019 punishes a public officer or a private person who violates
Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years
and one (1) month to not more than fifteen (15) years and perpetual
disqualification from public office. Under Section 1 of the Indeterminate
Sentence Law or Act No. 4103, as amended by Act No. 4225, if the
offense is punished by a special law, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.1avvphi1
Thus, the penalty imposed by the Sandiganbayan upon petitioner
Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day
to twelve (12) years and four (4) months is in accord with law. As a
co-principal without the benefit of an incomplete justifying circumstance to
his credit, petitioner Apelado, Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan
in Criminal Case No. 25892 is AFFIRMED
WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and
Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section
3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise,
sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight
(8) months and one (1) day to twelve (12) years and four (4) months.
With costs against the petitioners.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
|
ANTONIO T. CARPIO*
Associate Justice
|
LUCAS P. BERSAMIN
Associate Justice
|
MARIANO C. DEL CASTILLO
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987
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.
RENATO C. CORONA
Chief Justice
Footnotes
* Designated additional member per Raffle dated July 4, 2011
in lieu of Associate Justice Teresita J. Leonardo-De Castro who recused herself
due to prior action in the Sandiganbayan.
1 Rollo (G.R. No. 175457), pp. 8-34.
2 Rollo (G.R. No. 175482) pp. 8-15.
3 Id. at 16-24; rollo (G.R. No. 175457), pp.
35-43. Penned by Associate Justice Roland B. Jurado with Presiding Justice
Teresita J. Leonardo-De Castro (now a member of this Court) and Associate
Justice Diosdado M. Peralta (also now a member of this Court) concurring.
4 Id. at 26-44; id. at 44-62.
5 Exhibit "D". Dated September 11, 1998.
6 Records, Vol. I, pp. 10-18.
7 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:
x x x x
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
x x x x
8 Records, Vol. I, pp. 64-65.
9 Id. at 1-2.
10 Id. at 102-104.
11 Art. 156. Delivering prisoners from jail. - The
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any person
who shall remove from any jail or penal establishment any person confined
therein or shall help the escape of such person, by means of violence,
intimidation or bribery. If other means are used, the penalty of arresto
mayor shall be imposed.
x x x x
12 Records, Vol. I, pp. 100-101.
13 Id. at 100.
14 Id. at 314-316.
15 TSN, October 8, 2001, pp. 7, 23-30, 33.
16 TSN, October 9, 2001, pp. 5-7, 22-24.
17 TSN, March 11, 2002, pp. 4-6, 16, 21.
18 TSN, March 12, 2002, pp. 11-17, 32.
19 Id. at 21, 60-61.
20 Supra note 3.
21 Sec. 3, Rule 114, Rules of Court.
22 Rollo (G.R. No. 175457), pp. 16-17.
23 Rollo (G.R. No. 175482), pp. 11-12.
24 Art. 11. Justifying circumstances. - The
following do not incur any criminal liability:
x x x x
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
x x x x
25 Art. 11. Justifying circumstances. - The
following do not incur any criminal liability:
x x x x
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
26 Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA
47, 53-54.
27 Revising Presidential Decree No. 1486 Creating a Special
Court to be known as "Sandiganbayan" and for Other Purposes.
28 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.
29 Records, Vol. I, p. 43.
30 G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA 670.
31 Id. at 680.
32 An Act Establishing the Philippine National Police Under a
Reorganized Department of the Interior and Local Government, and for Other
Purposes.
33 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140-141.
34 Id. at 142.
35 Joson v. Torres, G.R. No. 131255, May 20, 1998, 290 SCRA 279, 301.
36 Id.
37 Drilon v. Lim, supra at 142.
38 H.C. Black, Black’s Law Dictionary, 1979 Ed., 42.
39 SEC. 1737. Transfer of prisoners to jail of
neighboring province.-In case there should be no jail in any province, or
in case a provincial jail of any province be insecure or insufficient for the
accommodation of all provincial prisoners, it shall be the duty of the
provincial board to make arrangements for the safe-keeping of the prisoners of
the province with the provincial board of some neighboring province in the jail
of such neighboring province, and when such arrangement has been made it shall
be the duty of the officer having custody of the prisoner to commit him to the
jail of such neighboring province, and he shall be there detained with the same
legal effect as though confined in the jail of the province where the offense
for which he was arrested was committed.
40 Exhibit "Q."
41 TSN, October 8, 2001, p. 55.
42 Nos. L-51065-72, June 30, 1987, 151 SCRA 399.
43 Id. at 405.
44 G.R. No. 134493, August 16, 2005, 467 SCRA 52.
45 Id. at 60.
46 H.C. Black, Black’s Law Dictionary, 1979 Ed., 1010.
47 Id. at 1028.
48 Sison v. People, supra at 682.
49 Id. at 681-682.
50 Valeroso v. People, G.R. No. 149718, September 29, 2003, 412 SCRA 257, 261.
51 L.B. Reyes, The Revised Penal Code, Book One, p. 213.
52 Art. 17. Principals. - The following are
considered principals:
1. Those who take a direct part in the execution of the act;
x x x x
53 People v. Serrano, G.R. No. 179038, May 6, 2010, 620 SCRA 327, 336-337.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
THIRD DIVISION
G.R. Nos. 120744-46
June 25, 2012
SALVADOR YAPYUCO y
ENRIQUEZ, Petitioner,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE
OF THE PHILIPPINES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 122677
MARIO D. REYES, ANDRES S.
REYES and VIRGILIO A. MANGUERRA, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and THE PEOPLE
OF THE PHILIPPINES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 122776
GERVACIO B. CUNANAN, JR.
and ERNESTO PUNO, Petitioners,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, Respondents.
D E C I S I O N
PERALTA, J.:
Law enforcers thrust their lives in unimaginable zones of peril.
Yet resort to wanton violence is never justified when their duty could be
performed otherwise. A "shoot first, think later" disposition
occupies no decent place in a civilized society. Never has homicide or murder
been a function of law enforcement. The public peace is never predicated on the
cost of human life.
These are petitions for review on certiorari under Rule 45 of the
Rules of Court assailing the June 30, 1995 Decision1 of the Sandiganbayan in
Criminal Case Nos. 16612, 16613 and 16614 – cases for murder, frustrated murder
and multiple counts of attempted murder, respectively. The cases are predicated
on a shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando,
Pampanga which caused the death of Leodevince Licup (Licup) and injured Noel
Villanueva (Villanueva). Accused were petitioners Salvador Yapyuco, Jr.
(Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno) who were
members of the Integrated National Police (INP)2 stationed at the Sindalan
Substation in San Fernando, Pampanga; Jose Pamintuan (Pamintuan) and Mario
Reyes, who were barangay captains of Quebiawan and Del Carmen, respectively;
Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David,
Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and
Carlos David (David), who were either members of the Civil Home Defense Force
(CHDF) or civilian volunteer officers in Barangays Quebiawan, Del Carmen and
Telebastagan. They were all charged with murder, multiple attempted murder and
frustrated murder in three Informations, the inculpatory portions of which
read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan,
San Fernando, Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers, being then
policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense
Force (CHDF), respectively, confederating and mutually helping one another, and
while responding to information about the presence of armed men in said
barangay and conducting surveillance thereof, thus committing the offense in
relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with deliberate
intent to take the life of Leodevince S. Licup, attack the latter with
automatic weapons by firing directly at the green Toyota Tamaraw jitney ridden
by Leodevince S. Licup and inflicting multiple gunshot wounds which are
necessarily mortal on the different parts of the body, thereby causing the
direct and immediate death of the latter.
CONTRARY TO LAW.3
Criminal Case No. 16613:
That on or about the 5th day of April 1988, in Barangay Quebiawan,
San Fernando, Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers, being then
policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense
Force (CHDF), respectively, confederating and mutually helping one another, and
while responding to information about the presence of armed men in said
barangay and conducting surveillance thereof, thus committing the offense in
relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent to kill,
attack Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V.
Panlican with automatic weapons by firing directly at the green Toyota Tamaraw
jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G.
Calma and Raul V. Panlican, having commenced the commission of murder directly
by overt acts of execution which should produce the murder by reason of some
cause or accident other than their own spontaneous desistance.
CONTRARY TO LAW.4
Criminal Case No. 16614:
That on or about the 5th day of April 1988, in Barangay Quebiawan,
San Fernando, Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers, being then
policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense
Force (CHDF), respectively, confederating and mutually helping one another, and
while responding to information about the presence of armed men in said
barangay and conducting surveillance thereof, thus committing the offense in
relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with intent of taking
the life of Noel C. Villanueva, attack the latter with automatic weapons by
firing directly at the green Toyota Tamaraw jitney driven by said Noel C.
Villanueva and inflicting multiple gunshot wounds which are necessarily mortal
and having performed all the acts which would have produced the crime of
murder, but which did not, by reason of causes independent of the defendants’
will, namely, the able and timely medical assistance given to said Noel C.
Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily
surrendered to the authorities,6 the accused – except
Pabalan who died earlier on June 12, 1990,7 and Yapyuco who was then
allegedly indisposed8 – entered individual pleas
of not guilty.9 A month later, Yapyuco
voluntarily surrendered to the authorities, and at his arraignment likewise
entered a negative plea.10 In the meantime, Mario
Reyes, Andres Reyes, David, Lugtu, Lacson, Yu and Manguerra jointly filed a
Motion for Bail relative to Criminal Case No. 16612.11 Said motion was heard on
the premise, as previously agreed upon by both the prosecution and the defense,
that these cases would be jointly tried and that the evidence adduced at said
hearing would automatically constitute evidence at the trial on the merits.12 On May 10, 1991, the
Sandiganbayan granted bail in Criminal Case No. 16612.13 Yapyuco likewise applied
for bail on May 15, 1991 and the same was also granted on May 21, 1991.14 Pamintuan died on November
21, 1992,15 and accordingly, the
charges against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused
waived the pre-trial inquest. 16 Hence, joint trial on the
merits ensued and picked up from where the presentation of evidence left off at
the hearing on the bail applications.
The prosecution established that in the evening of April 5, 1988,
Villanueva, Flores, Calma, De Vera, Panlican and Licup were at the residence of
Salangsang as guests at the barrio fiesta celebrations between 5:00 and 7:30
p.m.. The company decided to leave at around 7:30 p.m., shortly after the
religious procession had passed. As they were all inebriated, Salangsang
reminded Villanueva, who was on the wheel, to drive carefully and watch out for
potholes and open canals on the road. With Licup in the passenger seat and the
rest of his companions at the back of his Tamaraw jeepney, Villanueva allegedly
proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were
approaching a curve on the road, they met a burst of gunfire and instantly,
Villanueva and Licup were both wounded and bleeding profusely.17
Both Flores and Villanueva, contrary to what the defense would
claim, allegedly did not see any one on the road flag them down.18 In open court, Flores
executed a sketch19 depicting the relative
location of the Tamaraw jeepney on the road, the residence of Salangsang where
they had come from and the house situated on the right side of the road right
after the curve where the jeepney had taken a left turn; he identified said house
to be that of a certain Lenlen Naron where the gunmen allegedly took post and
opened fire at him and his companions. He could not tell how many firearms were
used. He recounted that after the shooting, he, unaware that Licup and
Villanueva were wounded, jumped out of the jeepney when he saw from behind them
Pamintuan emerging from the yard of Naron’s house. Frantic and shaken, he
instantaneously introduced himself and his companions to be employees of San
Miguel Corporation but instead, Pamintuan reproved them for not stopping when
flagged. At this point, he was distracted when Villanueva cried out and told
him to summon Salangsang for help as he (Villanueva) and Licup were wounded. He
dashed back to Salangsang’s house as instructed and, returning to the scene, he
observed that petitioner Yu was also there, and Villanueva and Licup were being
loaded into a Sarao jeepney to be taken to the hospital.20 This was corroborated by
Villanueva who stated that as soon as the firing had ceased, two armed men,
together with Pamintuan, approached them and transferred him and Licup to
another jeepney and taken to the nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire
which very rapidly succeeded each other, and that they were given no warning
shot at all contrary to what the defense would say.22 He professed that he,
together with his co-passengers, were also aboard the Sarao jeepney on its way
to the hospital and inside it he observed two men, each holding long firearms,
seated beside the driver. He continued that as soon as he and his companions
had been dropped off at the hospital, the driver of the Sarao jeepney
immediately drove off together with his two armed companions.23 He further narrated that
the day after the shooting, he brought Licup to the Makati Medical Center where
the latter expired on April 7, 1988.24 He claimed that all the
accused in the case had not been known to him prior to the incident, except for
Pamintuan whom he identified to be his wife’s uncle and with whom he denied
having had any rift nor with the other accused for that matter, which would
have otherwise inspired ill motives. 25 He claimed the bullet holes
on the Tamaraw jeepney were on the passenger side and that there were no other
bullet holes at the back or in any other portion of the vehicle.26
Salangsang, also an electrician at the San Miguel Corporation
plant, affirmed the presence of his companions at his residence on the subject
date and time, and corroborated Villanueva’s and Flores’ narration of the
events immediately preceding the shooting. He recounted that after seeing off
his guests shortly after the procession had passed his house and reminding them
to proceed carefully on the pothole-studded roads, he was alarmed when moments
later, he heard a volley of gunfire from a distance which was shortly followed
by Flores’ frantic call for help. He immediately proceeded to the scene on his
bicycle and saw Pamintuan by the lamppost just outside the gate of Naron’s
house where, inside, he noticed a congregation of more or less six people whom
he could not recognize. 27 At this point, he witnessed
Licup and Villanueva being loaded into another jeepney occupied by three men
who appeared to be in uniform. He then retrieved the keys of the Tamaraw
jeepney from Villanueva and decided to deliver it to his mother’s house, but
before driving off, he allegedly caught a glance of Mario Reyes on the wheel of
an owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same
jeepney which he remembered to be that frequently used by Yapyuco in patrolling
the barangay. He claimed he spent the night at his mother’s house and in the
morning, a policeman came looking for him with whom, however, he was not able
to talk.28
Salangsang observed that the scene of the incident was dark because
the electric post in front of Naron’s house was strangely not lit when he
arrived, and that none of the neighboring houses was illuminated. He admitted
his uncertainty as to whether it was Yapyuco’s group or the group of Pamintuan
that brought his injured companions to the hospital, but he could tell with
certainty that it was the Sarao jeepney previously identified by Villanueva and
Flores that brought his injured companions to the hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police
Crime Laboratory in Camp Olivas, affirmed that she had previously examined the
firearms suspected to have been used by petitioners in the shooting and found
them positive for gunpowder residue. She could not, however, determine exactly
when the firearms were discharged; neither could she tell how many firearms
were discharged that night nor the relative positions of the gunmen. She admitted
having declined to administer paraffin test on petitioners and on the other
accused because the opportunity therefor came only 72 hours after the incident.
She affirmed having also examined the Tamaraw jeepney and found eleven (11)
bullet holes on it, most of which had punctured the door at the passenger side
of the vehicle at oblique and perpendicular directions. She explained, rather
inconclusively, that the bullets that hit at an angle might have been fired
while the jeepney was either at a standstill or moving forward in a straight
line, or gradually making a turn at the curve on the road.30 Additionally, Silvestre
Lapitan, administrative and supply officer of the INP-Pampanga Provincial
Command tasked with the issuance of firearms and ammunitions to members of the
local police force and CHDF and CVO members, identified in court the memorandum
receipts for the firearms he had issued to Mario Reyes, Andres Reyes,
Manguerra, Pabalan and Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical
Center, examined the injuries of Villanueva and Licup on April 6, 1988. He
recovered multiple metal shrapnel from the occipital region of Villanueva’s
head as well as from the posterior aspect of his chest; he noted nothing
serious in these wounds in that the incapacity would last between 10 and 30
days only. He also located a bullet wound on the front lateral portion of the
right thigh, and he theorized that this wound would be caused by a firearm
discharged in front of the victim, assuming the assailant and the victim were
both standing upright on the ground and the firearm was fired from the level of
the assailant’s waist; but if the victim was seated, the position of his thigh
must be horizontal so that with the shot coming from his front, the trajectory
of the bullet would be upward. He hypothesized that if the shot would come
behind Villanueva, the bullet would enter the thigh of the seated victim and
exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when
examined. On the patient, he noted a lacerated wound at the right temporal
region of the head – one consistent with being hit by a hard and blunt object
and not a bullet. He noted three (3) gunshot wounds the locations of which
suggested that Licup was upright when fired upon from the front: one is a
through-and-through wound in the middle lateral aspect of the middle portion of
the right leg; another, through-and-through wound at the middle portion of the
right forearm; and third one, a wound in the abdomen which critically and fatally
involved the stomach and the intestines. He hypothesized that if Licup was
seated in the passenger seat as claimed, his right leg must have been exposed
and the assailant must have been in front of him holding the gun slightly
higher than the level of the bullet entry in the leg. He found that the wound
in the abdomen had entered from the left side and crossed over to and exited at
the right, which suggested that the gunman must have been positioned at Licup’s
left side. He explained that if this wound had been inflicted ahead of that in
the forearm, then the former must have been fired after Licup had changed his
position as a reaction to the first bullet that hit him. He said that the wound
on the leg must have been caused by a bullet fired at the victim’s back and hit
the jeepney at a downward angle without hitting any hard surface prior.33
Dr. Solis believed that the wound on Licup’s right forearm must
have been caused by a bullet fired from the front but slightly obliquely to the
right of the victim. Hypothesizing, he held the improbability of Licup being
hit on the abdomen, considering that he might have changed position following
the infliction of the other wounds, unless there was more than one assailant
who fired multiple shots from either side of the Tamaraw jeepney; however, he
proceeded to rule out the possibility of Licup having changed position
especially if the gunfire was delivered very rapidly. He could not tell which
of Licup’s three wounds was first inflicted, yet it could be that the bullet to
the abdomen was delivered ahead of the others because it would have caused
Licup to lean forward and stoop down with his head lying low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National
Police Commission (NAPOLCOM) affirmed that the accused police officers Yapyuco,
Cunanan and Puno had been administratively charged with and tried for gross
misconduct as a consequence of the subject shooting incident and that he had in
fact conducted investigations thereon sometime in 1989 and 1990 which
culminated in their dismissal from service.35 Dolly Porqueriño,
stenographer at the NAPOLCOM, testified that at the hearing of the
administrative case, Yapyuco authenticated the report on the shooting incident
dated April 5, 1988 which he had previously prepared at his office. This,
according to her, together with the sketch showing the relative position of the
responding law enforcers and the Tamaraw jeepney at the scene of the incident,
had been forwarded to the NAPOLCOM Central Office for consideration.36 The Sandiganbayan, in fact,
subpoenaed these documents together with the joint counter-affidavits which had
been submitted in that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He
identified himself as the commander of the Sindalan Police Substation in San
Fernando, Pampanga and the superior officer of petitioners Cunanan and Puno and
of the accused Yu whose jurisdiction included Barangays Quebiawan and
Telebastagan. He narrated that in the afternoon of April 5, 1988, he and his
men were investigating a physical injuries case when Yu suddenly received a summon
for police assistance from David, who supposedly was instructed by Pamintuan,
concerning a reported presence of armed NPA members in Quebiawan. Yapyuco
allegedly called on their main station in San Fernando for reinforcement but at
the time no additional men could be dispatched. Hence, he decided to respond
and instructed his men to put on their uniforms and bring their M-16 rifles
with them.37
Yapyuco continued that at the place appointed, he and his group met
with Pamintuan who told him that he had earlier spotted four (4) men carrying
long firearms. As if sizing up their collective strength, Pamintuan allegedly
intimated that he and barangay captain Mario Reyes of nearby Del Carmen had
also brought in a number of armed men and that there were likewise Cafgu
members convened at the residence of Naron. Moments later, Pamintuan announced
the approach of his suspects, hence Yapyuco, Cunanan and Puno took post in the
middle of the road at the curve where the Tamaraw jeepney conveying the victims
would make an inevitable turn. As the jeepney came much closer, Pamintuan
announced that it was the target vehicle, so he, with Cunanan and Puno behind
him, allegedly flagged it down and signaled for it to stop. He claimed that
instead of stopping, the jeepney accelerated and swerved to its left. This
allegedly inspired him, and his fellow police officers Cunanan and Puno,38 to fire warning shots but
the jeepney continued pacing forward, hence they were impelled to fire at the
tires thereof and instantaneously, gunshots allegedly came bursting from the
direction of Naron’s house directly at the subject jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then
alighted and exclaimed at Pamintuan that they were San Miguel Corporation
employees. Holding their fire, Yapyuco and his men then immediately searched
the vehicle but found no firearms but instead, two injured passengers whom they
loaded into his jeepney and delivered to nearby St. Francis Hospital. From
there he and his men returned to the scene supposedly to investigate and look
for the people who fired directly at the jeepney. They found no one; the
Tamaraw jeepney was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay
Quebiawan at the time was in bad shape, as in fact there were several law
enforcement officers in the area who had been ambushed supposedly by rebel elements,41 and that he frequently
patrolled the barangay on account of reported sightings of unidentified armed
men therein.42 That night, he said, his
group which responded to the scene were twelve (12) in all, comprised of
Cunanan and Puno from the Sindalan Police Substation, 43 the team composed of
Pamintuan and his men, as well as the team headed by Captain Mario Reyes. He
admitted that all of them, including himself, were armed.44 He denied that they had
committed an ambuscade because otherwise, all the occupants of the Tamaraw
jeepney would have been killed. 45 He said that the shots
which directly hit the passenger door of the jeepney did not come from him or
from his fellow police officers but rather from Cafgu members assembled in the
residence of Naron, inasmuch as said shots were fired only when the jeepney had
gone past the spot on the road where they were assembled.46
Furthermore, Yapyuco professed that he had not communicated with
any one of the accused after the incident because he was at the time very
confused; yet he did know that his co-accused had already been investigated by
the main police station in San Fernando, but the inquiries did not include
himself, Cunanan and Puno.47 He admitted an
administrative case against him, Cunanan and Puno at the close of which they
had been ordered dismissed from service; yet on appeal, the decision was
reversed and they were exonerated. He likewise alluded to an investigation
independently conducted by their station commander, S/Supt. Rolando
Cinco. 48
S/Supt Rolando Cinco, then Station Commander of the INP in San
Fernando, Pampanga acknowledged the volatility of the peace and order situation
in his jurisdiction, where members of the police force had fallen victims of
ambuscade by lawless elements. He said that he himself has actually conducted
investigations on the Pamintuan report that rebel elements had been trying to
infiltrate the employment force of San Miguel Corporation plant, and that he
has accordingly conducted "clearing operations" in sugarcane
plantations in the barangay. He intimated that days prior to the incident,
Yapyuco’s team had already been alerted of the presence of NPA members in the
area. Corroborating Yapyuco’s declaration, he confessed having investigated the
shooting incident and making a report on it in which, curiously, was supposedly
attached Pamintuan’s statement referring to Flores as being "married to a
resident of Barangay Quebiawan" and found after surveillance to be
"frequently visited by NPA members." He affirmed having found that
guns were indeed fired that night and that the chief investigator was able to
gather bullet shells from the scene. 49
Cunanan and Puno did not take the witness stand but adopted the
testimony of Yapyuco as well as the latter’s documentary evidence.50 Mario Reyes, Andres Reyes,
Lugtu, Lacson, Yu and Manguera, waived their right to present evidence and
submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused
had acted in the regular and lawful performance of their duties in the
maintenance of peace and order either as barangay officials and as members of
the police and the CHDF, and hence, could take shelter in the justifying
circumstance provided in Article 11 (5) of the Revised Penal Code; or whether
they had deliberately ambushed the victims with the intent of killing them.52 With the evidence in hand,
it found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as
co-principals in the separate offense of homicide for the eventual death of
Licup (instead of murder as charged in Criminal Case No. 16612) and of
attempted homicide for the injury sustained by Villanueva (instead of
frustrated murder as charged in Criminal Case No. 16614), and acquitted the
rest in those cases. It acquitted all of them of attempted murder charged in
Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and Calma. The
dispositive portion of the June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y
Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y
David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby
found GUILTY beyond reasonable doubt as co-principals in the offense of
Homicide, as defined and penalized under Article 249 of the Revised Penal Code,
and crediting all of them with the mitigating circumstance of voluntary
surrender, without any aggravating circumstance present or proven, each of said
accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX
(6) YEARS and ONE (1) DAY of prision correccional, as the minimum,
to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as the
maximum; to indemnify, jointly and severally, the heirs of the deceased victim
Leodevince Licup in the amounts of ₱77,000.00 as actual damages and ₱600,000.00
as moral/exemplary damages, and to pay their proportionate shares of the costs
of said action.
II. In Crim. Case No. 16613, for insufficiency of
evidence, all the accused charged in the information, namely, Salvador Yapyuco
y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y
David, Carlos David y Bañez, Ruben Lugtu y Lacson, Moises Lacson y Adona,
Renato Yu y Barrera, Andres Reyes y Salangsang and Virgilio Manguerra y Adona
are hereby acquitted of the offense of Multiple Attempted Murder charged
therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco
y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes y
David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby
found GUILTY beyond reasonable doubt as co-principals in the offense Attempted
Homicide, as defined and penalized under Article 249, in relation to Article 6,
paragraph 3, both of the Revised Penal Code, and crediting them with the
mitigating circumstance of voluntary surrender, without any aggravating
circumstance present or proven, each of said accused is hereby sentenced to
suffer an indeterminate penalty ranging from SIX (6) MONTHS and ONE (1) DAY
of prision correccional as the minimum, to SIX (6) YEARS and
ONE (1) DAY of prision mayor as the maximum; to indemnify,
jointly and severally, the offended party Noel Villanueva in the amount of
₱51,700.00 as actual and compensatory damages, plus ₱120,000.00 as
moral/exemplary damages, and to pay their proportionate share of the costs of
said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries
to Villanueva and which brought the eventual death of Licup has been committed
by petitioners herein willfully under the guise of maintaining peace and order;54 that the acts performed by
them preparatory to the shooting, which ensured the execution of their evil
plan without risk to themselves, demonstrate a clear intent to kill the
occupants of the subject vehicle; that the fact they had by collective action
deliberately and consciously intended to inflict harm and injury and had
voluntarily performed those acts negates their defense of lawful performance of
official duty;55 that the theory of mistaken
belief could not likewise benefit petitioners because there was supposedly no
showing that they had sufficient basis or probable cause to rely fully on
Pamintuan’s report that the victims were armed NPA members, and they have not
been able by evidence to preclude ulterior motives or gross inexcusable
negligence when they acted as they did;56 that there was insufficient
or total absence of factual basis to assume that the occupants of the jeepney
were members of the NPA or criminals for that matter; and that the shooting
incident could not have been the product of a well-planned and well-coordinated
police operation but was the result of either a hidden agenda concocted by
Barangay Captains Mario Reyes and Pamintuan, or a hasty and amateurish attempt
to gain commendation.57
These findings obtain context principally from the open court
statements of prosecution witnesses Villanueva, Flores and Salangsang,
particularly on the circumstances prior to the subject incident. The
Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if
it had truly been flagged down as claimed by Yapyuco especially since – as it
turned out after the search of the vehicle – they had no firearms with them,
and hence, they had nothing to be scared of.58 It observed that while
Salangsang and Flores had been bona fide residents of Barangay Quebiawan, then
it would be impossible for Pamintuan, barangay captain no less, not to have
known them and the location of their houses which were not far from the scene
of the incident; so much so that the presence of the victims and of the Tamaraw
jeepney in Salangsang’s house that evening could not have possibly escaped his
notice. In this regard, it noted that Pamintuan’s Sworn Statement dated April
11, 1988 did not sufficiently explain his suspicions as to the identities of
the victims as well as his apparent certainty on the identity and whereabouts
of the subject Tamaraw jeepney. 59 It surmised how the
defense, especially Yapyuco in his testimony, could have failed to explain why
a large group of armed men – which allegedly included Cafgu members from
neighboring barangays – were assembled at the house of Naron that night, and
how petitioners were able to identify the Tamaraw jeepney to be the target
vehicle. From this, it inferred that petitioners had already known that their
suspect vehicle would be coming from the direction of Salangsang’s house – such
knowledge is supposedly evident first, in the manner by which they
advantageously positioned themselves at the scene to afford a direct line of
fire at the target vehicle, and second, in the fact that the house of Naron,
the neighboring houses and the electric post referred to by prosecution
witnesses were deliberately not lit that night.60
The Sandiganbayan also drew information from Flores’ sketch depicting
the position of the Tamaraw jeepney and the assailants on the road, and
concluded that judging by the bullet holes on the right side of the jeepney and
by the declarations of Dr. Solis respecting the trajectory of the bullets that
hit Villanueva and Licup, the assailants were inside the yard of Naron’s
residence and the shots were fired at the jeepney while it was slowly moving
past them. It also gave weight to the testimony and the report of Dabor telling
that the service firearms of petitioners had been tested and found to be
positive of gunpowder residue, therefore indicating that they had indeed been
discharged.61
The Sandiganbayan summed up what it found to be overwhelming
circumstantial evidence pointing to the culpability of petitioners: the nature
and location of the bullet holes on the jeepney and the gunshot wounds on the
victims, as well as the trajectory of the bullets that caused such damage and
injuries; particularly, the number, location and trajectory of the bullets that
hit the front passenger side of the jeepney; the strategic placement of the
accused on the right side of the street and inside the front yard of Naron’s
house; the deliberate shutting off of the lights in the nearby houses and the
lamp post; and the positive ballistic findings on the firearms of
petitioners. 62
This evidentiary resumé, according to the Sandiganbayan, not only
fortified petitioners’ admission that they did discharge their firearms, but also
provided a predicate to its conclusion that petitioners conspired with one
another to achieve a common purpose, design and objective to harm the unarmed
and innocent victims. Thus, since there was no conclusive proof of who among
the several accused had actually fired the gunshots that injured Villanueva and
fatally wounded Licup, the Sandiganbayan imposed collective responsibility on
all those who were shown to have discharged their firearms that night –
petitioners herein.63 Interestingly, it was
speculated that the manner by which the accused collectively and individually
acted prior or subsequent to or contemporaneously with the shooting indicated
that they were either drunk or that some, if not all of them, had a grudge
against the employees of San Miguel Corporation;64 and that on the basis of
the self-serving evidence adduced by the defense, there could possibly have
been a massive cover-up of the incident by Philippine Constabulary and INP
authorities in Pampanga as well as by the NAPOLCOM.65 It likewise found very
consequential the fact that the other accused had chosen not to take the
witness stand; this, supposedly because it was incumbent upon them to
individually explain their participation in the shooting in view of the weight
of the prosecution evidence, their invocation of the justifying circumstance of
lawful performance of official duty and the declaration of some of them in
their affidavits to the effect that they had been deployed that evening in the
front yard of Naron’s residence from which the volley of gunfire was discharged
as admitted by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found
that the qualifying circumstance of treachery has not been proved because
first, it was supposedly not shown how the aggression commenced and how the
acts causing injury to Villanueva and fatally injuring Licup began and developed,
and second, this circumstance must be supported by proof of a deliberate and
conscious adoption of the mode of attack and cannot be drawn from mere
suppositions or from circumstances immediately preceding the aggression. The
same finding holds true for evident premeditation because between the time
Yapyuco received the summons for assistance from Pamintuan through David and
the time he and his men responded at the scene, there was found to be no
sufficient time to allow for the materialization of all the elements of that
circumstance.67
Finally as to damages, Villanueva had testified that his injury
required leave from work for 60 days which were all charged against his
accumulated leave credits;68 that he was earning
₱8,350.00 monthly;69 and that he had spent
₱35,000.00 for the repair of his Tamaraw jeepney.70 Also, Teodoro Licup had
stated that his family had spent ₱18,000.00 for the funeral of his son,
₱28,000.00 during the wake, ₱11,000.00 for the funeral plot and ₱20,000.00 in
attorney’s fees for the prosecution of these cases.71 He also submitted a
certification from San Miguel Corporation reflecting the income of his deceased
son.72 On these bases, the
Sandiganbayan ordered petitioners, jointly and severally, to indemnify (a)
Villanueva ₱51,700.00 as actual and compensatory damages and ₱120,000.00 as moral/exemplary
damages, plus the proportionate costs of the action, and (b) the heirs of
deceased Licup in the amount of ₱77,000.00 as actual damages and ₱600,000.00 as
moral/exemplary damages, plus the proportionate costs of the action.
Petitioners’ motion for reconsideration was denied; hence, the
present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayan’s
finding of conspiracy and labels the same to be conjectural. He points out that
the court a quo has not clearly established that he had by positive acts
intended to participate in any criminal object in common with the other
accused, and that his participation in a supposed common criminal object has
not been proved beyond reasonable doubt. He believes the finding is belied by
Flores and Villanueva, who saw him at the scene only after the shooting
incident when the wounded passengers were taken to the hospital on his jeepney.73 He also points out the
uncertainty in the Sandiganbayan’s declaration that the incident could not have
been the product of a well-planned police operation, but rather was the result
of either a hidden agenda concocted against the victims by the barangay
officials involved or an amateurish attempt on their part to earn commendation.
He theorizes that, if it were the latter alternative, then he could hardly be
found guilty of homicide or frustrated homicide but rather of reckless
imprudence resulting in homicide and frustrated homicide. 74 He laments that, assuming
arguendo that the injuries sustained by the victims were caused by his warning
shots, he must nevertheless be exonerated because he responded to the scene of
the incident as a bona fide member of the police force and, hence, his presence
at the scene of the incident was in line with the fulfillment of his duty as he
was in fact in the lawful performance thereof – a fact which has been affirmed
by the NAPOLCOM en banc when it dismissed on appeal the complaint for gross
misconduct against him, Cunanan and Puno.75 He also invokes the concept
of mistake of fact and attributes to Pamintuan the responsibility why he, as
well as the other accused in these cases, had entertained the belief that the
suspects were armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres
Reyes claim that the Sandiganbayan has not proved their guilt beyond reasonable
doubt, and the assailed decision was based on acts the evidence for which has
been adduced at a separate trial but erroneously attributed to them. They
explain that there were two sets of accused, in the case: one, the police
officers comprised of Yapyuco, Cunanan and Puno and, two, the barangay
officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves who
had waived the presentation of evidence. They question their conviction of the
charges vis-a-vis the acquittal of David, Lugtu, Lacson and Yu who, like them,
were barangay officials and had waived their right to present evidence in their
behalf. They emphasize in this regard that all accused barangay officials and
CHDFs did not participate in the presentation of the evidence by the accused
police officers and, hence, the finding that they too had fired upon the
Tamaraw jeepney is hardly based on an established fact.77 Also, they believe that the
findings of fact by the Sandiganbayan were based on inadmissible evidence,
specifically on evidence rejected by the court itself and those presented in a
separate trial. They label the assailed decision to be speculative, conjectural
and suspicious and, hence, antithetical to the quantum of evidence required in
a criminal prosecution.78 Finally, they lament that
the finding of conspiracy has no basis in evidence and that the prosecution has
not even shown that they were with the other accused at the scene of the
incident or that they were among those who fired at the victims, and neither
were they identified as among the perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding
of conspiracy. They claim that judging by the uncertainty in the conclusion of
the Sandiganbayan as to whether the incident was the result of a legitimate
police operation or a careless plot designed by the accused to obtain
commendation, conspiracy has not been proved beyond reasonable doubt. This,
because they believe the prosecution has not, as far as both of them are
concerned, shown that they had ever been part of such malicious design to
commit an ambuscade as that alluded to in the assailed decision. They advance
that as police officers, they merely followed orders from their commander,
Yapyuco, but were not privy to the conversation among the latter, David and
Pamintuan, moments before the shooting. They posit they could hardly be assumed
to have had community of criminal design with the rest of the accused.80 They affirm Yapyuco’s
statement that they fired warning shots at the subject jeepney,81 but only after it had
passed the place where they were posted and only after it failed to stop when
flagged down as it then became apparent that it was going to speed away – as
supposedly shown by bullet holes on the chassis and not on the rear portion of
the jeepney. They also harp on the absence of proof of ill motives that would
have otherwise urged them to commit the crimes charged, especially since none
of the victims had been personally or even remotely known to either of them.
That they were not intending to commit a crime is, they believe, shown by the
fact that they did not directly aim their rifles at the passengers of the
jeepney and that in fact, they immediately held their fire when Flores
identified themselves as employees of San Miguel Corporation. They conceded
that if killing was their intent, then they could have easily fired at the
victims directly.82
Commenting on these petitions, the Office of the Special Prosecutor
stands by the finding of conspiracy as established by the fact that all
accused, some of them armed, had assembled themselves and awaited the suspect
vehicle as though having previously known that it would be coming from
Salangsang’s residence. It posits that the manner by which the jeepney was
fired upon demonstrates a community of purpose and design to commit the crimes
charged.83 It believes that criminal intent
is discernible from the posts the accused had chosen to take on the road that
would give them a direct line of fire at the target – as shown by the
trajectories of the bullets that hit the Tamaraw jeepney.84 This intent was supposedly
realized when after the volley of gunfire, both Flores and Licup were wounded
and the latter died as a supervening consequence.85 It refutes the invocation
of lawful performance of duty, mainly because there was no factual basis to
support the belief of the accused that the occupants were members of the NPA,
as indeed they have not shown that they had previously verified the whereabouts
of the suspect vehicle. But while it recognizes that the accused had merely
responded to the call of duty when summoned by Pamintuan through David, it is
convinced that they had exceeded the performance thereof when they fired upon
the Tamaraw jeepney occupied, as it turned out, by innocent individuals
instead.86
As to the contention of Mario Reyes, Andres Reyes and Manguerra
that the evidence adduced before the Sandiganbayan as well the findings based
thereon should not be binding on them, the OSP explains that said petitioners,
together with Pamintuan, David, Lugtu, Lacson and Yu, had previously withdrawn
their motion for separate trial and as directed later on submitted the case for
decision as to them with the filing of their memorandum. It asserts there was
no denial of due process to said petitioners in view of their agreement for the
reproduction of the evidence on the motion for bail at the trial proper as well
as by their manifestation to forego with the presentation of their own
evidence. The right to present witnesses is waivable. Also, where an accused is
jointly tried and testifies in court, the testimony binds the other accused,
especially where the latter has failed to register his objection thereto.87
The decision on review apparently is laden with conclusions and
inferences that seem to rest on loose predicates. Yet we have pored over the
records of the case and found that evidence nonetheless exists to support the
penultimate finding of guilt beyond reasonable doubt.
I.
It is as much undisputed as it is borne by the records that
petitioners were at the situs of the incident on the date and time alleged in
the Informations. Yapyuco, in his testimony – which was adopted by Cunanan and
Puno – as well as Manguerra, Mario Reyes and Andres Reyes in their affidavits
which had been offered in evidence by the prosecution,88 explained that their
presence at the scene was in response to the information relayed by Pamintuan
through David that armed rebel elements on board a vehicle described to be that
occupied by the victims were reportedly spotted in Barangay Quebiawan. It is on
the basis of this suspicion that petitioners now appeal to justification under
Article 11 (5) of the Revised Penal Code and under the concept of mistake of
fact. Petitioners admit that it was not by accident or mistake but by
deliberation that the shooting transpired when it became apparent that the
suspect vehicle was attempting to flee, yet contention arises as to whether or
not there was intention to harm or even kill the passengers aboard, and who
among them had discharged the bullets that caused the eventual death of Licup
and injured Villanueva.
The first duty of the prosecution is not to present the crime but
to identify the criminal.89 To this end, the
prosecution in these cases offered in evidence the joint counter-affidavit90 of Andres Reyes and
Manguerra; the counter-affidavit91 of Mario Reyes; the
joint counter-affidavit92 of Cunanan and Puno;
the counter-affidavit93 of Yapyuco; and the
joint counter-affidavit94 of Yapyuco, Cunanan
and Puno executed immediately after the incident in question. In brief, Cunanan
and Puno stated therein that "[their] team was forced to fire at the said
vehicle" when it accelerated after warning shots were fired in air and
when it ignored Yapyuco’s signal for it to stop;95 in their earlier
affidavit they, together with Yapyuco, declared that they were
"constrained x x x to fire directly to (sic) the said fleeing
vehicle."96 Yapyuco’s open court
declaration, which was adopted by Cunanan and Puno, is that he twice discharged
his firearm: first, to give warning to the subject jeepney after it allegedly
failed to stop when flagged down and second, at the tires thereof when it came
clear that it was trying to escape.97 He suggested –
substantiating the implication in his affidavit that it was "the whole
team [which fired] at the fleeing vehicle" 98 – that the bullets
which hit the passenger side of the ill-fated jeepney could have come only from
the CHDFs posted inside the yard of Naron where Manguerra, Mario Reyes and
Andres Reyes admitted having taken post while awaiting the arrival of the
suspect vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared
that it was only Manguerra from their group who discharged a firearm but only
into the air to give warning shots,100 and that it was the
"policemen [who] directly fired upon" the jeepney.101 Manguerra himself
shared this statement.102 Yet these accounts
do not sit well with the physical evidence found in the bullet holes on the
passenger door of the jeepney which Dabor, in both her report and testimony,
described to have come from bullets sprayed from perpendicular and oblique
directions. This evidence in fact supports Yapyuco’s claim that he, Cunanan and
Puno did fire directly at the jeepney after it had made a right turn and had
already moved past them such that the line of fire to the passengers thereof
would be at an oblique angle from behind. It also bolsters his claim that,
almost simultaneously, gunshots came bursting after the jeepney has passed the
spot where he, Cunanan and Puno had taken post, and when the vehicle was
already right in front of the yard of Naron’s house sitting on the right side
of the road after the curve and where Manguerra, Mario Reyes and Andres Reyes
were positioned, such that the line of fire would be direct and perpendicular
to it.103
While Dabor’s ballistics findings are open to challenge for being
inconclusive as to who among the accused actually discharged their firearms
that night, her report pertaining to the examination of the ill-fated Tamaraw
jeepney affirms the irreducible fact that the CHDFs posted within the yard of
Naron’s house had indeed sprayed bullets at the said vehicle. Manguerra, Mario
Reyes and Andres Reyes seek to insulate themselves by arguing that such finding
cannot be applied to them as it is evidence adduced in a separate trial. But as
the OSP noted, they may not evade the effect of their having withdrawn their
motion for separate trial, their agreement to a joint trial of the cases, and
the binding effect on them of the testimony of their co-accused, Yapyuco.104
Indeed, the extrajudicial confession or admission of one accused is
admissible only against said accused, but is inadmissible against the other
accused. But if the declarant or admitter repeats in court his extrajudicial
admission, as Yapyuco did in this case, during the trial and the other accused
is accorded the opportunity to cross-examine the admitter, the admission is
admissible against both accused because then, it is transposed into a judicial
admission.105 It is thus
perplexing why, despite the extrajudicial statements of Cunanan, Puno and Yapyuco,
as well as the latter’s testimony implicating them in the incident, they still
had chosen to waive their right to present evidence when, in fact, they could
have shown detailed proof of their participation or non-participation in the
offenses charged. We, therefore, reject their claim that they had been denied
due process in this regard, as they opted not to testify and be cross-examined
by the prosecution as to the truthfulness in their affidavits and, accordingly,
disprove the inculpatory admissions of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of
duty or lawful exercise of a right or office under Article 11 (5) of the
Revised Penal Code rests on proof that (a) the accused acted in the performance
of his duty or in the lawful exercise of his right or office, and (b) the
injury caused or the offense committed is the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office.106 The justification is based
on the complete absence of intent and negligence on the part of the accused,
inasmuch as guilt of a felony connotes that it was committed with criminal
intent or with fault or negligence.107 Where
invoked, this ground for non-liability amounts to an acknowledgment that the
accused has caused the injury or has committed the offense charged for which,
however, he may not be penalized because the resulting injury or offense is a
necessary consequence of the due performance of his duty or the lawful exercise
of his right or office. Thus, it must be shown that the acts of the accused
relative to the crime charged were indeed lawfully or duly performed; the
burden necessarily shifts on him to prove such hypothesis.
We find that the requisites
for justification under Article 11 (5) of the Revised Penal Code do not obtain
in this case.
The undisputed presence of
all the accused at the situs of the incident is a legitimate law enforcement
operation. No objection is strong enough to defeat the claim that all of them –
who were either police and barangay officers or CHDF members tasked with the
maintenance of peace and order – were bound to, as they did, respond to
information of a suspected rebel infiltration in the locality. Theirs,
therefore, is the specific duty to identify the occupants of their suspect
vehicle and search for firearms inside it to validate the information they had
received; they may even effect a bloodless arrest should they find cause to believe
that their suspects had just committed, were committing or were bound to commit
a crime. While, it may certainly be argued that rebellion is a continuing
offense, it is interesting that nothing in the evidence suggests that the
accused were acting under an official order to open fire at or kill the
suspects under any and all circumstances. Even more telling is the absence of
reference to the victims having launched such aggression as would threaten the
safety of any one of the accused, or having exhibited such defiance of
authority that would have instigated the accused, particularly those armed, to
embark on a violent attack with their firearms in self-defense. In fact, no
material evidence was presented at the trial to show that the accused were placed
in real mortal danger in the presence of the victims, except maybe their bare
suspicion that the suspects were armed and were probably prepared to conduct
hostilities.
But whether or not the
passengers of the subject jeepney were NPA members and whether or not they were
at the time armed, are immaterial in the present inquiry inasmuch as they do
not stand as accused in the prosecution at hand. Besides, even assuming that
they were as the accused believed them to be, the actuations of these
responding law enforcers must inevitably be ranged against reasonable
expectations that arise in the legitimate course of performance of policing
duties. The rules of engagement, of which every law enforcer must be thoroughly
knowledgeable and for which he must always exercise the highest caution, do not
require that he should immediately draw or fire his weapon if the person to be
accosted does not heed his call. Pursuit without danger should be his next
move, and not vengeance for personal feelings or a damaged pride. Police work
requires nothing more than the lawful apprehension of suspects, since the
completion of the process pertains to other government officers or agencies.108
A law enforcer in the
performance of duty is justified in using such force as is reasonably necessary
to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm.109 United States v. Campo110 has laid down the rule that
in the performance of his duty, an agent of the authorities is not authorized
to use force, except in an extreme case when he is attacked or is the subject
of resistance, and finds no other means to comply with his duty or cause
himself to be respected and obeyed by the offender. In case injury or death
results from the exercise of such force, the same could be justified in
inflicting the injury or causing the death of the offender if the officer had
used necessary force.111 He is, however, never
justified in using unnecessary force or in treating the offender with wanton
violence, or in resorting to dangerous means when the arrest could be effected
otherwise.112 People v. Ulep113 teaches that –
The right to kill an
offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without
bloodshed. The law does not clothe police officers with authority to
arbitrarily judge the necessity to kill. It may be true that police officers
sometimes find themselves in a dilemma when pressured by a situation where an
immediate and decisive, but legal, action is needed. However, it must be
stressed that the judgment and discretion of police officers in the performance
of their duties must be exercised neither capriciously nor oppressively, but
within reasonable limits. In the absence of a clear and legal provision to the
contrary, they must act in conformity with the dictates of a sound discretion,
and within the spirit and purpose of the law. We cannot countenance
trigger-happy law enforcement officers who indiscriminately employ force and
violence upon the persons they are apprehending. They must always bear in mind
that although they are dealing with criminal elements against whom society must
be protected, these criminals are also human beings with human rights.114
Thus, in People v. Tabag,115 where members of the Davao
CHDF had killed four members of a family in their home because of suspicions
that they were NPA members, and the accused sought exoneration by invoking
among others the justifying circumstance in Article 11 (5) of the Revised Penal
Code, the Court in dismissing the claim and holding them liable for murder
said, thus:
In no way can Sarenas claim
the privileges under paragraphs 5 and 6, Article 11 of the Revised Penal Code,
for the massacre of the Magdasals can by no means be considered as done in the
fulfillment of a duty or in the lawful exercise of an office or in obedience to
an order issued by a superior for some lawful purpose. Other than "suspicion,"
there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their
children were members of the NPA. And even if they were members of the NPA,
they were entitled to due process of law. On that fateful night, they were
peacefully resting in their humble home expecting for the dawn of another
uncertain day. Clearly, therefore, nothing justified the sudden and unprovoked
attack, at nighttime, on the Magdasals. The massacre was nothing but a
merciless vigilante-style execution.116
Petitioners rationalize
their election to aim their fire directly at the jeepney by claiming that it
failed to heed the first round of warning shots as well as the signal for it to
stop and instead tried to flee. While it is possible that the jeepney had been
flagged down but because it was pacing the dark road with its headlights dimmed
missed petitioners’ signal to stop, and compound to it the admitted fact that
the passengers thereof were drunk from the party they had just been to,117 still, we find
incomprehensible petitioners’ quick resolve to use their firearms when in fact
there was at least one other vehicle at the scene – the Sarao jeepney owned by
Yapyuco – which they could actually have used to pursue their suspects whom
they supposedly perceived to be in flight.
Lawlessness is to be dealt
with according to the law. Only absolute necessity justifies the use of force,
and it is incumbent on herein petitioners to prove such necessity. We find,
however, that petitioners failed in that respect. Although the employment of
powerful firearms does not necessarily connote unnecessary force, petitioners
in this case do not seem to have been confronted with the rational necessity to
open fire at the moving jeepney occupied by the victims. No explanation is
offered why they, in that instant, were inclined for a violent attack at their
suspects except perhaps their over-anxiety or impatience or simply their
careless disposition to take no chances. Clearly, they exceeded the fulfillment
of police duties the moment they actualized such resolve, thereby inflicting
Licup with a mortal bullet wound, causing injury to Villanueva and exposing the
rest of the passengers of the jeepney to grave danger to life and limb – all of
which could not have been the necessary consequence of the fulfillment of their
duties.
III.
At this juncture, we find
that the invocation of the concept of mistake of fact faces certain failure. In
the context of criminal law, a "mistake of fact" is a misapprehension
of a fact which, if true, would have justified the act or omission which is the
subject of the prosecution.118 Generally, a reasonable
mistake of fact is a defense to a charge of crime where it negates the intent
component of the crime.119 It may be a defense even if
the offense charged requires proof of only general intent.120 The inquiry is into the
mistaken belief of the defendant,121 and it does not look at all
to the belief or state of mind of any other person.122 A proper invocation of this
defense requires (a) that the mistake be honest and reasonable;123 (b) that it be a matter of
fact;124 and (c) that it negate the
culpability required to commit the crime125 or the existence of the
mental state which the statute prescribes with respect to an element of the
offense.126
The leading authority in
mistake of fact as ground for non-liability is found in United States v. Ah
Chong,127 but in that setting, the
principle was treated as a function of self-defense where the physical
circumstances of the case had mentally manifested to the accused an aggression
which it was his instinct to repel. There, the accused, fearful of bad
elements, was woken by the sound of his bedroom door being broken open and,
receiving no response from the intruder after having demanded identification,
believed that a robber had broken in. He threatened to kill the intruder but at
that moment he was struck by a chair which he had placed against the door and,
perceiving that he was under attack, seized a knife and fatally stabbed the
intruder who turned out to be his roommate. Charged with homicide, he was
acquitted because of his honest mistake of fact. Finding that the accused had
no evil intent to commit the charge, the Court explained:
x x x The maxim here
is Ignorantia facti excusat ("Ignorance or mistake in
point of fact is, in all cases of supposed offense, a sufficient excuse").
Since evil intent is in
general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability, provided always there
is no fault or negligence on his part and as laid down by Baron Parke,
"The guilt of the accused must depend on the circumstances as they appear
to him." x x x
If, in language not
uncommon in the cases, one has reasonable cause to believe the existence of
facts which will justify a killing — or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault or carelessness
he does not believe them — he is legally guiltless of homicide; though he
mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense
and the not quite harmonious authorities, it is the doctrine of reason, and
sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or carelessness,
he is misled concerning them, and defends himself correctly according to what
he thus supposes the facts to be, the law will not punish him though they are
in truth otherwise, and he has really no occasion for the extreme measure. x x
x 128
Besides, as held in People
v. Oanis129 and Baxinela v. People,130 the justification of an
act, which is otherwise criminal on the basis of a mistake of fact, must
preclude negligence or bad faith on the part of the accused.131 Thus, Ah Chong further
explained that –
The question then squarely
presents itself, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which
he would be exempt from criminal liability if the facts were as he supposed
them to be, but which would constitute the crime of homicide or assassination
if the actor had known the true state of the facts at the time when he committed
the act. To this question we think there can be but one answer, and we hold
that under such circumstances there is no criminal liability, provided always
that the alleged ignorance or mistake of fact was not due to negligence or bad
faith.132
IV.
This brings us to whether
the guilt of petitioners for homicide and frustrated homicide has been
established beyond cavil of doubt. The precept in all criminal cases is that
the prosecution is bound by the invariable requisite of establishing the guilt
of the accused beyond reasonable doubt. The prosecution must rely on the
strength of its own evidence and not on the evidence of the accused. The
weakness of the defense of the accused does not relieve the prosecution of its
responsibility of proving guilt beyond reasonable doubt.133 By reasonable doubt is
meant that doubt engendered by an investigation of the whole proof and an
inability, after such investigation, to let the mind rest easy upon the
certainty of guilt.134 The overriding
consideration is not whether the court doubts the innocence of the accused, but
whether it entertains reasonable doubt as to his guilt.135
The prosecution is burdened
to prove corpus delicti beyond reasonable doubt either by
direct evidence or by circumstantial or presumptive evidence.136 Corpus delicti consists of
two things: first, the criminal act and second, defendant's agency in the commission
of the act.137 In homicide (by dolo) as
well as in murder cases, the prosecution must prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was in some way
criminally responsible for the act which produced the death. In other words,
proof of homicide or murder requires incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice), that is,
with intent to kill. Such evidence may consist in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the victim
and the words uttered by the malefactors before, at the time or immediately
after the killing of the victim. If the victim dies because of a deliberate act
of the malefactors, intent to kill is conclusively presumed.138 In such case, even if there
is no intent to kill, the crime is homicide because with respect to crimes of
personal violence, the penal law looks particularly to the material results
following the unlawful act and holds the aggressor responsible for all the
consequences thereof. 139 Evidence of intent to kill
is crucial only to a finding of frustrated and attempted homicide, as the same
is an essential element of these offenses, and thus must be proved with the
same degree of certainty as that required of the other elements of said
offenses.140
The records disclose no ill
motives attributed to petitioners by the prosecution. It is interesting that,
in negating the allegation that they had by their acts intended to kill the
occupants of the jeepney, petitioners turn to their co-accused Pamintuan, whose
picture depicted in the defense evidence is certainly an ugly one: petitioners’
affidavits as well as Yapyuco’s testimony are replete with suggestions that it
was Pamintuan alone who harbored the motive to ambush the suspects as it was he
who their (petitioners’) minds that which they later on conceded to be a
mistaken belief as to the identity of the suspects. Cinco, for one, stated in
court that Pamintuan had once reported to him that Flores, a relative of his
(Pamintuan), was frequently meeting with NPA members and that the San Miguel
Corporation plant where the victims were employed was being penetrated by NPA
members. He also affirmed Yapyuco’s claim that there had been a number of
ambuscades launched against members of law enforcement in Quebiawan and in the
neighboring areas supposedly by NPA members at around the time of the incident.
But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had died
during the pendency of these cases even before his opportunity to testify in
court emerged.141
Yet whether such claims
suffice to demonstrate ill motives evades relevance and materiality. Motive is
generally held to be immaterial inasmuch as it is not an element of a crime. It
gains significance when the commission of a crime is established by evidence
purely circumstantial or otherwise inconclusive.142 The question of motive is
important in cases where there is doubt as to whether the defendant is or is
not the person who committed the act, but when there is no doubt that the
defendant was the one who caused the death of the deceased, it is not so important
to know the reason for the deed.143
In the instant case,
petitioners, without abandoning their claim that they did not intend to kill
anyone of the victims, admit having willfully discharged their service
firearms; and the manner by which the bullets concentrated on the passenger
side of the jeepney permits no other conclusion than that the shots were
intended for the persons lying along the line of fire. We do not doubt that
instances abound where the discharge of a firearm at another is not in itself sufficient
to sustain a finding of intention to kill, and that there are instances where the
attendant circumstances conclusively establish that the discharge was not in
fact animated by intent to kill. Yet the rule is that in ascertaining the
intention with which a specific act is committed, it is always proper and
necessary to look not merely to the act itself but to all the attendant
circumstances so far as they develop in the evidence.144
The firearms used by
petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber
carbine.145 While the use of these
weapons does not always amount to unnecessary force, they are nevertheless
inherently lethal in nature. At the level the bullets were fired and hit the
jeepney, it is not difficult to imagine the possibility of the passengers
thereof being hit and even killed. It must be stressed that the subject jeepney
was fired upon while it was pacing the road and at that moment, it is not as
much too difficult to aim and target the tires thereof as it is to imagine the peril
to which its passengers would be exposed even assuming that the gunfire was
aimed at the tires – especially considering that petitioners do not appear to
be mere rookie law enforcers or unskilled neophytes in encounters with lawless
elements in the streets.
Thus, judging by the
location of the bullet holes on the subject jeepney and the firearms employed,
the likelihood of the passenger next to the driver – and in fact even the
driver himself – of being hit and injured or even killed is great to say the
least, certain to be precise. This, we find to be consistent with the uniform
claim of petitioners that the impulse to fire directly at the jeepney came when
it occurred to them that it was proceeding to evade their authority. And in
instances like this, their natural and logical impulse was to debilitate the
vehicle by firing upon the tires thereof, or to debilitate the driver and hence
put the vehicle to a halt. The evidence we found on the jeepney suggests that
petitioners’ actuations leaned towards the latter.
This demonstrates the clear
intent of petitioners to bring forth death on Licup who was seated on the
passenger side and to Villanueva who was occupying the wheel, together with all
the consequences arising from their deed. The circumstances of the shooting
breed no other inference than that the firing was deliberate and not
attributable to sheer accident or mere lack of skill. Thus, Cupps v.
State146 tells that:
This rule that every person
is presumed to contemplate the ordinary and natural consequences of his own
acts, is applied even in capital cases. Because men generally act deliberately
and by the determination of their own will, and not from the impulse of blind
passion, the law presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of the deceased was
designed by the slayer; and the burden of proof is on him to show that it was
otherwise.
V.
Verily, the shooting
incident subject of these petitions was actualized with the deliberate intent
of killing Licup and Villanueva, hence we dismiss Yapyuco’s alternative claim
in G.R. No. 120744 that he and his co-petitioners must be found guilty merely
of reckless imprudence resulting in homicide and frustrated homicide. Here is
why:
First, the crimes committed
in these cases are not merely criminal negligence, the killing being intentional
and not accidental. In criminal negligence, the injury caused to another should
be unintentional, it being the incident of another act performed without
malice.147 People v. Guillen148 and People v.
Nanquil 149 declare that a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence. And in People v. Castillo,150 we held that that there can
be no frustrated homicide through reckless negligence inasmuch as reckless
negligence implies lack of intent to kill, and without intent to kill the crime
of frustrated homicide cannot exist.
Second, that petitioners by
their acts exhibited conspiracy, as correctly found by the Sandiganbayan,
likewise militates against their claim of reckless imprudence.
Article 8 of the Revised
Penal Code provides that there is conspiracy when two or more persons agree to
commit a felony and decide to commit it. Conspiracy need not be proven by
direct evidence. It may be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that they had acted with
a common purpose and design. Conspiracy may be implied if it is proved that two
or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though
apparently independent of each other were, in fact, connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment.
Conspiracy once found, continues until the object of it has been accomplished
and unless abandoned or broken up. To hold an accused guilty as a co-principal
by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity. There must be intentional
participation in the transaction with a view to the furtherance of the common
design and purpose.151
Conspiracy to exist does
not require an agreement for an appreciable period prior to the occurrence.1a\^/phi1 From the legal viewpoint,
conspiracy exists if, at the time of the commission of the offense, the accused
had the same purpose and were united in its execution.152 The instant case requires
no proof of any previous agreement among petitioners that they were really bent
on a violent attack upon their suspects. While it is far-fetched to conclude
that conspiracy arose from the moment petitioners, or all of the accused for
that matter, had converged and strategically posted themselves at the place
appointed by Pamintuan, we nevertheless find that petitioners had been ignited
by the common impulse not to let their suspect jeepney flee and evade their
authority when it suddenly occurred to them that the vehicle was attempting to
escape as it supposedly accelerated despite the signal for it to stop and
submit to them. As aforesaid, at that point, petitioners were confronted with
the convenient yet irrational option to take no chances by preventing the
jeepney’s supposed escape even if it meant killing the driver thereof. It
appears that such was their common purpose. And by their concerted action of
almost simultaneously opening fire at the jeepney from the posts they had
deliberately taken around the immediate environment of the suspects,
conveniently affording an opportunity to target the driver, they did achieve
their object as shown by the concentration of bullet entries on the passenger
side of the jeepney at angular and perpendicular trajectories. Indeed, there is
no definitive proof that tells which of all the accused had discharged their
weapons that night and which directly caused the injuries sustained by
Villanueva and fatally wounded Licup, yet we adopt the Sandiganbayan’s
conclusion that since only herein petitioners were shown to have been in
possession of their service firearms that night and had fired the same, they
should be held collectively responsible for the consequences of the subject law
enforcement operation which had gone terribly wrong.153
VI.
The Sandiganbayan correctly
found that petitioners are guilty as co-principals in the crimes of homicide
and attempted homicide only, respectively for the death of Licup and for the
non-fatal injuries sustained by Villanueva, and that they deserve an acquittal
together with the other accused, of the charge of attempted murder with respect
to the unharmed victims.154 The allegation of evident
premeditation has not been proved beyond reasonable doubt because the evidence
is consistent with the fact that the urge to kill had materialized in the minds
of petitioners as instantaneously as they perceived their suspects to be
attempting flight and evading arrest. The same is true with treachery, inasmuch
as there is no clear and indubitable proof that the mode of attack was
consciously and deliberately adopted by petitioners.
Homicide, under Article 249
of the Revised Penal Code, is punished by reclusion temporal whereas an attempt
thereof, under Article 250 in relation to Article 51, warrants a penalty lower
by two degrees than that prescribed for principals in a consummated homicide.
Petitioners in these cases are entitled to the ordinary mitigating circumstance
of voluntary surrender, and there being no aggravating circumstance proved and
applying the Indeterminate Sentence Law, the Sandiganbayan has properly fixed
in Criminal Case No. 16612 the range of the penalty from six (6) years and one
(1) day, but should have denominated the same as prision mayor, not prision
correccional, to twelve (12) years and one (1) day of reclusion temporal.
However, upon the finding
that petitioners in Criminal Case No. 16614 had committed attempted homicide, a
modification of the penalty is in order. The penalty of attempted homicide is
two (2) degrees lower to that of a consummated homicide, which is prision
correccional. Taking into account the mitigating circumstance of voluntary
surrender, the maximum of the indeterminate sentence to be meted out on
petitioners is within the minimum period of prision correccional, which
is six (6) months and one (1) day to two (2) years and four (4) months of prision
correccional, whereas the minimum of the sentence, which under
the Indeterminate Sentence Law must be within the range of the penalty next
lower to that prescribed for the offense, which is one (1) month and one (1)
day to six (6) months of arresto mayor.
We likewise modify the
award of damages in these cases, in accordance with prevailing jurisprudence,
and order herein petitioners, jointly and severally, to indemnify the heirs of
Leodevince Licup in the amount of ₱77,000.00 as actual damages and ₱50,000.00
in moral damages. With respect to Noel Villanueva, petitioners are likewise
bound to pay, jointly and severally, the amount of ₱51,700.00 as actual and
compensatory damages and ₱20,000.00 as moral damages. The award of exemplary
damages should be deleted, there being no aggravating circumstance that
attended the commission of the crimes.
WHEREFORE, the instant
petitions are DENIED. The
joint decision of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and
16614, dated June 27, 1995, are hereby AFFIRMED with the following MODIFICATIONS:
(a) In Criminal Case No.
16612, petitioners are sentenced to suffer the indeterminate penalty of six (6)
years and one (1) day of prision mayor, as the minimum, to twelve (12) years
and one (1) day of reclusion temporal, as the maximum; in Criminal Case No.
16614, the indeterminate sentence is hereby modified to Two (2) years and four
(4) months of prision correccional, as the maximum, and Six (6) months of
arresto mayor, as the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly
and severally, the heirs of Leodevince Licup in the amount of ₱77,000.00 as
actual damages, ₱50,000.00 in moral damages, as well as Noel Villanueva, in the
amount of ₱51,700.00 as actual and compensatory damages, and ₱20,000.00 as
moral damages.
SO ORDERED.
DIOSDADO M. PERALTA*
Associate Justice
WE CONCUR:
LUCAS P. BERSAMIN**
Associate Justice
|
ROBERTO A. ABAD
Associate Justice
|
MARTIN S. VILLARAMA, JR.***
Associate Justice
|
ESTELA M. PERLAS-BERNABE
Associate Justice
A T T E S T A T I O N
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
C E R T I F I C A T I O N
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.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
* Per Special Order
No. 1228 dated June 6, 2012
* * Designated Acting
Member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No.
1241 dated June 14, 2012.
*** Designated Acting
Member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special
Order No. 1229 dated June 6, 2012.
1 Penned by Associate Justice Romeo
M. Escareal (Chairman), with Associate Justices Minita V. Chico-Nazario and
Roberto M. Lagman, concurring; rollo (G.R. Nos. 120744-46), pp. 7-80.
2 Now known as the Philippine
National Police.
3 Records, Vol. 1, pp. 1-2.
4 Records, Vol. 5, pp. 1-2.
5 Records, Vol. 6, pp. 1-2
6 Records, Vol. 1, p. 46.
7 Accordingly, the charges against
him were dismissed. See April 30, 1991 Order, id. at 108. TSN,
April 30, 1991, pp. 3-5.
8 April 30, 1991 Order, records, vol.
1, pp. 107-108; TSN, April 30, 1991, pp. 12-14. See also records, vol. 1, pp
191-197.
9 Records, Vol. 1, pp. 96-105.
10 Id. at 307.
11 Records, Vol. 1, pp. 52-55.
12 Resolution dated May 10,
1991, records, vol. 1, pp. 198-205.
13 Id. at 205.
14 Id. at. 300-308.
15 See certificate of Death,
records, Vol. II, p. 707; see also Manifestation dated December 11, 1992, id.
at 703-704.
16 Records, Vol. 1, p. 388.
17 TSN, April 30, 1991, pp.
27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 20-22.
18 Id.; Id.; TSN,
May 2, 1991, pp. 25-26
19 Exhibits "L,"
"L-1" to "L-5."
20 TSN, May 2, 1991, pp. 6-13,
15-17-19, 22-25, 26-29, 45-46, 52-53; TSN, July 5, 1991, pp. 38-46; 48-49;
21 TSN, April 30, 1991, pp.
27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 20-22;
22 TSN, May 2, 1991, pp.
25-26.
23 Id. at 31-32, 44-45, 51.
24 Id. at 37 and 55.
25 Id. at 16.
26 Id. at 57-59.
27 TSN, July 23, 1991, pp.
38-41; TSN, May 3, 1991, pp. 4-10, 18, 27, 29.
28 Id. at 17-20, 24-26, 41-47;
id. at 10-14, 18-23.
29 TSN, May 3, 1991, pp.
14-15.
30 TSN, July 24, 1991, pp.
38-40, 47-55; TSN, November 26, 1991, pp. 4-8, 10-14, 19-20. See Technical
Report No. PI-032-88, Exhibit "J."
31 TSN, April 30, 1991, pp.
17-19. See Memorandum Receipts, Exhibits D, E, F, G, H.
32 TSN, October 22, 1991, pp.
7, 10-11, 13-20, 42-43, 49-50. Dr. Pedro Solis appears to have authored a book
on legal Medicine in 1964. See Medico-legal Report dated April 6, 1988, Exhibit
I.
33 TSN, October 22, 1991, pp.
21-23, 26-28, 30-34, 37-42, 50-53.
34 Id. at 44-48.
35 TSN, October 7, 1991, pp.
12, 14-15.
36 TSN, October 25, 1991, pp.
17-44.
37 TSN, September 15, 1993,
pp. 5-12; TSN, November 8, 1993, p. 10.
38 Memorandum of Cunanan and
Puno filed with the Sandiganbayan, rollo (G.R. No. 122776), p.
126.
39 TSN, September 15, 1993,
pp. 13-15, 18-21; TSN, November 8, 1993, pp. 3, 5, 12, 23-25, 31. See also
Joint Counter Affidavit of Cunanan and Puno, dated July 20, 1988, in which they
stated that their "team was forced to fire at the said vehicle" when
it did not heed the supposed warning shots, Exhibit "A." In their
earlier Joint Affidavit dated April 5, 1988, Yapyuco, Cunanan and Puno stated
that after firing warning shots in the air, the subject jeepney accelerated its
speed which "constrained (them) to fire directly to (sic) the said fleeing
vehicle, Exhibit "O."
40 TSN, September 15, 1993,
pp. 22-23; TSN, November 8, 1993, pp. 6-7, 10-11, 21-23.
41 Id. at 23-25; Id.
at 4.
42 TSN, November 8, 1993, p.
12, 15-16.
43 Id. at 6-7
44 TSN, September 15, 1993, p.
23; TSN, November 8, 1993, pp. 7-8, 10-11, 20
45 TSN, November 8, 1993, p.
5.
46 Id. at 8-9.
47 Id. at 21-23.
48 TSN, September 15, 1993,
pp. 26-29.
49 TSN, November 22, 1993, pp.
26-36, 40-43, 46-47.
50 See Order dated April 6,
1994, records, Vol. II, p. 955.
51 See Manifestation and
Motion dated May 6, 1993, id. at 759-761, and Resolution dated June 1, 1993,
id. at 763-764.
52 Rollo (G.R. Nos.
120744-46), p. 55.
53 Id. at 77-79.
54 Id. at 56-57.
55 Id. at 64-66.
56 Id. at 69-70.
57 Id. at 64-65.
58 Id. at 61.
59 Id. at 58.
60 Id. at 60-61.
61 Id. at 60-63.
62 Id. at 73-74.
63 Id. at 74-75.
64 Id. at 64-65.
65 Id. at 69.
66 Id. at 68-69.
67 Id. at 71-73.
68 Exhibit "X."
69 TSN, July 5, 1991, pp. 7-9,
27.
70 Id. at 11-12, 17.
71 TSN, January 9, 1991, pp.
4-12.
72 Exhibit "FF."
73 Rollo (G.R. Nos. 120744-46), p.
96.
74 Id. at 93-95.
75 Id. at 108.
76 Id. at 103.
77 Rollo (G.R. No. 122677),
pp. 57-65.
78 Id. at 75-81.
79 Id. at 82-89.
80 Rollo (G.R. No. 122776),
pp. 101-103.
81 Id.
82 Id. at 104-106.
83 Id. at 223-225.
84 Id. at 226-227.
85 Id. at 227-228.
86 Id. at 228-230.
87 Rollo (G.R. No. 122677),
pp. 230-232.
88 See note 50 and Exhibits
"A," "B," "C," "N" and "O."
89 People v. Esmale, G.R. Nos. 102981-82,
April 21, 1995, 243 SCRA 578, 592.
90 Co-executed by deceased
Pabalan, dated September 28, 1988, Exhibit "N."
91 Dated September 28, 1988,
Exhibit "C."
92 Dated July 20, 1988,
Exhibit "A."
93 Dated July 20, 1988,
Exhibit "B."
94 Dated April 5, 1988,
Exhibit "O."
95 Exhibits "A-1,"
"O," "B" and "B-1."
96 Exhibit "O."
97 See notes 38 and 39.
98 Exhibit "B-1."
99 See notes 38 and 39. See
also Exhibits "B" and "C."
100 Exhibit "C."
101 Exhibit "N."
102 Id.
103 See notes 30, 38 and 39.
Refer also to the sketch of Yapyuco and Flores depicting the relative location
of the Tamaraw jeepney at the scene of the incident.
104 Rollo (G.R. No. 122677),
pp. 230-232.
105 People v. Panida, G.R. Nos. 127125 and
138952, July 6, 1999, 310 SCRA 66; People v. Buntag, 471 Phil. 82,
95 (2004).
106 See People v. Oanis, 74 Phil.
257, 262-263 (1943); People v. Pajenado, G.R. No. L-26458, January 30, 1976, 69
SCRA 172, 177; Baxinela v. People, 520 Phil. 202, 214-215; People v. Belbes,
389 Phil. 500, 508-509 (2000); People v. Ulep, G.R. No. 132547, September 20,
2000, 340 SCRA 688, 699; Cabanlig v. Sandiganbayan, G.R. No. 148431, July 28,
2005, 464 SCRA 324, 333.
107 People v. Fallorina, G.R. No. 137347, March 4, 2004, 424 SCRA 655, 665, applying
Article 3 of the Revised Penal Code.
108 People v. Tan, G.R. Nos. 116200-02.
June 21, 2001, 359 SCRA 283, 297-298.
109 People v. Oanis, supra note 106, at 262.
110 10 Phil. 97, 99-100 (1908).
111 United States v. Mojica, 42 Phil. 784, 787 (1922).
112 People v. Oanis, supra note 106, at 262.
113 Supra note 106.
114 People v. Ulep, supra note 106, at 700.
115 335 Phil. 579 (1997).
116 Id. at 597. (Emphasis has been supplied.)
117 See note 17.
118 21 Am Jur 2d, $152, p. 232, citing Turner v. State, 210
Ga. App. 303, 436 S.E.2d 229.
119 Id., citing U.S. v. Vasarajs, 908 F.2d 443 and People
v. Nash, 282 Ill. App. 3d 982, 218 Ill. Dec. 410, 669 N.E.2d 353.
120 Id., citing Com. V. Simcock, 31 Mass. App. Ct. 184, 575
N.E.2d 1137
121 Id., citing Johnson v. State, 734 S.W.2d 199
122 Id.
123 Id. at 233, citing U.S. v. Buchannan, 115 F.3d 445; People
v. Reed, 53 Cal. App. 4th 389. Generally, ignorance or mistake of fact
constitutes a defense to a criminal charge only if it is not superinduced by
fault or negligence of party doing the charged act. (Crawford v. State,
267 Ga. 543, 480 S.E.2d 573). For a mistake of fact to negate a mental state
required to establish a criminal offense, the mistake must be reasonable, and
the act, to be justified, must be taken under a bona fide mistaken belief (Cheser
v. Com., 904 S.W.2d 239).
124 Id. at 233, citing Potter v. State, 684 N.E.2d 1127. If a
mistake arises not from ignorance of law, but from ignorance of an
independently determined legal status or condition that is one of the operative
facts of a crime, such a mistake is one of fact (U.S. v. Lopez-Lima, 738
F.Supp. 1404).
125 Id. at 233, citing Potter v. State, 684 N.E.2d
1127; Miller v. State, 815S.W.2d 582.
126 Id. at 233, citing Jones v. State, 263 Ga. 835, 439
S.E.2d 645.
127 15 Phil. 488 (1910).
128 Id. at 500-501. (Emphasis supplied.)
129 Supra note 106.
130 Supra note 106.
131 People v. Oanis, supra note 106, at 264; Baxinela v.
People, supra note 106, at 215.
132 United States v. Ah Chong, supra note 127, at 493.
133 People v. Crispin, G.R. No. 128360, March 2, 2000, 327 SCRA 167, 179; People
v. Calica, G.R. No. 139178, April 14, 2004, 427 SCRA 336, 362.
134 People v. Dramayo, G.R. No. L-21325, October 29, 1971, 42 SCRA 59, 64; People
v. Calica, supra, at 347.
135 People v. Gamer, G.R. No. 115984, February 29, 2000, 326 SCRA 660, 674.
136 People v. Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386, 400,
citing People v. Fulinara, G.R. No. 88326, August 3, 1995, 247
SCRA 28.
137 Gay v. State, 60 Southwestern Reporter, 771 (1901)
138 People v. Delim, supra note 136, at 400.
139 United States v. Gloria, 3 Phil. 333 (1903-1904).
140 Mondragon v. People, G.R. No. L-17666, June 30, 1966, 17 SCRA 476, 480-481; See also
Reyes, Luis B., Revised Penal Code, Book II, 15th ed (2001), p.
470.
141 Rollo (G.R. Nos. 120744-46), pp. 67-68
142 See Crisostomo v. Sandiganbayan, 495 Phil. 718, 745
(2005), citing People v. Flores, 389 Phil. 532 (2000).
143 People v. Ramirez, 104 Phil. 720, 726 (1958).
144 United States v. Montenegro, 15 Phil. 1, 6 (1910).
145 Exhibits "U," "U-0," "U-1,"
"U-2," "W," "W-1" and "W-2."
146 97 Northwestern Reporter, 210 (1903). (Emphasis supplied.)
147 People v. Oanis, supra note 106, at 262.
148 47 O.G. 3433, 3440
149 43 Phil. 232 (1922).
150 42 O.G. 1914, 1921.
151 People v. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454, 473.
152 U.S. v. Ancheta, 1 Phil. 165 (1901-1903); U.S. v. Santos, 2 Phil. 453,
456 (1903); People v. Mandagay and Taquiawan, 46 Phil. 838, 840
(1923); People v. Agbuya, 57 Phil. 238, 242 (1932); People
v. Ibañez, 77 Phil. 664; People v. Macabuhay, 46 O.G.
5469; People v. San Luis, 86 Phil. 485, 497 (1950); People
v. Dima Binasing, 98 Phil. 902, 908 (1956).
153 Rollo (G.R. Nos. 120744-46), p. 75, citing People v. Toling,
G.R. No. L-27097, January 17, 1975, 62 SCRA 17 and People v. Tamani,
G.R. Nos. L-22160 and L-22161, January 21, 1974, 55 SCRA 153.
154 Namely, Eduardo Flores, Raul Panlican, Alejandro De Vera and
Restituto Calma.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EN BANC
G.R. No. 135306
January 28, 2003
MVRS PUBLICATIONS, INC.,
MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID
DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you
write, but I shall fight to the death to make it possible for you to continue
writing it. —
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties
to free speech and free press — liberties that belong as well, if not more, to
those who question, who do not conform, who differ. For the ultimate good which
we all strive to achieve for ourselves and our posterity can better be reached
by a free exchange of ideas, where the best test of truth is the power of the thought
to get itself accepted in the competition of the free market — not just the
ideas we desire, but including those thoughts we despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation
of more than seventy (70) Muslim religious organizations, and individual
Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN,
AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of
Manila a complaint for damages in their own behalf and as a class suit in
behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS
C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an
article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The
article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri
ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang
sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom
at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at
sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa
araw na tinatawag nilang 'Ramadan'."
The complaint alleged that the libelous statement was insulting and
damaging to the Muslims; that these words alluding to the pig as the God of the
Muslims was not only published out of sheer ignorance but with intent to hurt
the feelings, cast insult and disparage the Muslims and Islam, as a religion in
this country, in violation of law, public policy, good morals and human
relations; that on account of these libelous words Bulgar insulted
not only the Muslims in the Philippines but the entire Muslim world, especially
every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their
defense, contended that the article did not mention respondents as the object
of the article and therefore were not entitled to damages; and, that the
article was merely an expression of belief or opinion and was published without
malice nor intention to cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding
that the plaintiffs failed to establish their cause of action since the persons
allegedly defamed by the article were not specifically identified —
It must be noted that the persons allegedly defamed, the herein
plaintiffs, were not identified with specificity. The subject article was
directed at the Muslims without mentioning or identifying the herein plaintiffs
x x x. It is thus apparent that the alleged libelous article refers to the
larger collectivity of Muslims for which the readers of the libel could not
readily identify the personalities of the persons defamed. Hence, it is
difficult for an individual Muslim member to prove that the defamatory remarks
apply to him. The evidence presented in this case failed to convince this court
that, indeed, the defamatory remarks really applied to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of the
trial court. It opined that it was "clear from the disputed article that
the defamation was directed to all adherents of the Islamic faith. It stated
that pigs were sacred and idolized as god by members of the Muslim religion.
This libelous imputation undeniably applied to the plaintiff-appellants who are
Muslims sharing the same religious beliefs." It added that the suit for
damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave it
the requisite personality to sue and protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of
the appellate court (a) on the existence of the elements of libel, (b) the
right of respondents to institute the class suit, and, (c) the liability of
petitioners for moral damages, exemplary damages, attorney's fees and costs of
suit.
Defamation, which includes libel and slander, means the offense of
injuring a person's character, fame or reputation through false and malicious
statements.5 It is that which tends to injure reputation or to diminish
the esteem, respect, good will or confidence in the plaintiff or to excite
derogatory feelings or opinions about the plaintiff.6 It is the publication of anything which is injurious to the
good name or reputation of another or tends to bring him into disrepute.7 Defamation is an invasion of a relational interest since it
involves the opinion which others in the community may have, or tend to have,
of the plaintiff.8
It must be stressed that words which are merely insulting are not
actionable as libel or slander per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written or spoken, do not
constitute a basis for an action for defamation in the absence of an allegation
for special damages.9 The fact that the language is offensive to the plaintiff does
not make it actionable by itself.10
Declarations made about a large class of people cannot be
interpreted to advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a particular member of a
class, no member of such class has a right of action11 without at all impairing the equally demanding right of free
speech and expression, as well as of the press, under the Bill of
Rights.12 Thus, in Newsweek, Inc. v. Intermediate Appellate
Court,13 we dismissed a complaint for libel against Newsweek,
Inc., on the ground that private respondents failed to state a cause of
action since they made no allegation in the complaint that anything contained
in the article complained of specifically referred to any of them. Private
respondents, incorporated associations of sugarcane planters in Negros
Occidental claiming to have 8,500 members and several individual members, filed
a class action suit for damages in behalf of all sugarcane planters in Negros
Occidental. The complaint filed in the Court of First Instance of Bacolod City
alleged that Newsweek, Inc., committed libel against them by the publication of
the article "Island of Fear" in its weekly newsmagazine allegedly
depicting Negros Province as a place dominated by wealthy landowners and sugar
planters who not only exploited the impoverished and underpaid sugarcane
workers but also brutalized and killed them with impunity. Private respondents
alleged that the article showed a deliberate and malicious use of falsehood,
slanted presentation and/or misrepresentation of facts intended to put the
sugarcane planters in a bad light, expose them to public ridicule, discredit
and humiliation in the Philippines and abroad, and make them the objects of
hatred, contempt and hostility of their agricultural workers and of the public
in general. We ratiocinated —
x x x where the defamation is alleged to have been directed at a
group or class, it is essential that the statement must be so sweeping or
all-embracing as to apply to every individual in that group or class, or
sufficiently specific so that each individual in the class or group can prove
that the defamatory statement specifically pointed to him, so that he can bring
the action separately, if need be x x x x The case at bar is not a class suit.
It is not a case where one or more may sue for the benefit of all, or where the
representation of class interest affected by the judgment or decree is
indispensable to make each member of the class an actual party. We have here a
case where each of the plaintiffs has a separate and distinct reputation in the
community. They do not have a common or general interest in the subject matter
of the controversy.
In the present case, there was no fairly identifiable person who
was allegedly injured by the Bulgar article. Since the persons
allegedly defamed could not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue for a class allegedly
disparaged. Private respondents must have a cause of action in common with the
class to which they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal, separate
and distinct in the community. Each Muslim, as part of the larger Muslim
community in the Philippines of over five (5) million people, belongs to a
different trade and profession; each has a varying interest and a divergent
political and religious view — some may be conservative, others liberal. A
Muslim may find the article dishonorable, even blasphemous; others may find it
as an opportunity to strengthen their faith and educate the non-believers and
the "infidels." There is no injury to the reputation of the
individual Muslims who constitute this community that can give rise to an
action for group libel. Each reputation is personal in character to every
person. Together, the Muslims do not have a single common reputation that will
give them a common or general interest in the subject matter of the
controversy.
In Arcand v. The Evening Call Publishing Company,14 the United States Court of Appeals held that one guiding
principle of group libel is that defamation of a large group does not
give rise to a cause of action on the part of an individual unless it can be
shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a person had allegedly committed libel against all persons of
the Jewish religion. The Court held that there could be no libel against an
extensive community in common law. In an English case, where libel consisted of
allegations of immorality in a Catholic nunnery, the Court considered that if
the libel were on the whole Roman Catholic Church generally, then the defendant
must be absolved.16 With regard to the largest sectors in society, including
religious groups, it may be generally concluded that no criminal action at the
behest of the state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering
more than 600 million, were defamed by the airing of a national television
broadcast of a film depicting the public execution of a Saudi Arabian princess
accused of adultery, and alleging that such film was "insulting and
defamatory" to the Islamic religion.17 The United States District Court of the Northern District of
California concluded that the plaintiffs' prayer for $20 Billion in damages
arising from "an international conspiracy to insult, ridicule, discredit
and abuse followers of Islam throughout the world, Arabs and the Kingdom of
Saudi Arabia" bordered on the "frivolous," ruling that the
plaintiffs had failed to demonstrate an actionable claim for defamation. The
California Court stressed that the aim of the law on defamation was to
protect individuals; a group may be sufficiently large that a statement
concerning it could not defame individual group members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to
the Law of Libel,"19 discusses the inappropriateness of any action for tortious
libel involving large groups, and provides a succinct illustration:
There are groupings which may be finite enough so that a
description of the body is a description of the members. Here the problem is
merely one of evaluation. Is the description of the member implicit in the
description of the body, or is there a possibility that a description of the
body may consist of a variety of persons, those included within the charge, and
those excluded from it?
A general charge that the lawyers in the city are shysters would
obviously not be a charge that all of the lawyers were shysters. A charge that
the lawyers in a local point in a great city, such as Times Square in New York
City, were shysters would obviously not include all of the lawyers who
practiced in that district; but a statement that all of the lawyers who
practiced in a particular building in that district were shysters would be a
specific charge, so that any lawyer having an office within that building could
sue.
If the group is a very large one, then the alleged libelous
statement is considered to have no application to anyone in particular, since
one might as well defame all mankind. Not only does the group as such have no
action; the plaintiff does not establish any personal reference to himself.20 At present, modern societal groups are both numerous and
complex. The same principle follows with these groups: as the size of these
groups increases, the chances for members of such groups to recover damages on
tortious libel become elusive. This principle is said to embrace two (2)
important public policies: first, where the group referred to is
large, the courts presume that no reasonable reader would take the statements
as so literally applying to each individual member; and second, the
limitation on liability would satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a sound compromise between the
conflicting fundamental interests involved in libel cases.21
In the instant case, the Muslim community is too vast as to readily
ascertain who among the Muslims were particularly defamed. The size of the
group renders the reference as indeterminate and generic as a similar attack on
Catholics, Protestants, Buddhists or Mormons would do. The word
"Muslim" is descriptive of those who are believers of Islam, a
religion divided into varying sects, such as the Sunnites, the Shiites, the
Kharijites, the Sufis and others based upon political and theological
distinctions. "Muslim" is a name which describes only a general
segment of the Philippine population, comprising a heterogeneous body whose
construction is not so well defined as to render it impossible for any representative
identification.
The Christian religion in the Philippines is likewise divided into
different sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and
other groups the essence of which may lie in an inspired charlatan, whose
temple may be a corner house in the fringes of the countryside. As with the
Christian religion, so it is with other religions that represent the nation's
culturally diverse people and minister to each one's spiritual needs. The
Muslim population may be divided into smaller groups with varying agenda, from
the prayerful conservative to the passionately radical. These divisions in the
Muslim population may still be too large and ambiguous to provide a reasonable
inference to any personality who can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by
Mr. Justice Reynato S. Puno in the course of the deliberations in this case. We
extensively reproduce hereunder his comprehensive and penetrating discussion on
group libel —
Defamation is made up of the twin torts of libel and slander — the
one being, in general, written, while the other in general is oral. In either
form, defamation is an invasion of the interest in reputation and good name.
This is a "relational interest" since it involves the opinion others
in the community may have, or tend to have of the plaintiff.
The law of defamation protects the interest in reputation — the
interest in acquiring, retaining and enjoying one's reputation as good as one's
character and conduct warrant. The mere fact that the plaintiff's feelings and
sensibilities have been offended is not enough to create a cause of action for
defamation. Defamation requires that something be communicated to a third
person that may affect the opinion others may have of the plaintiff. The
unprivileged communication must be shown of a statement that would tend to hurt
plaintiff's reputation, to impair plaintiff's standing in the community.
Although the gist of an action for defamation is an injury to
reputation, the focus of a defamation action is upon the allegedly defamatory
statement itself and its predictable effect upon third persons. A statement is
ordinarily considered defamatory if it "tend[s] to expose one to public
hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion,
ostracism, degradation or disgracex x x." The Restatement of Torts defines
a defamatory statement as one that "tends to so harm the reputation of
another as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him."
Consequently as a prerequisite to recovery, it is necessary for the
plaintiff to prove as part of his prima facie case that the
defendant (1) published a statement that was (2) defamatory (3) of and
concerning the plaintiff.
The rule in libel is that the action must be brought by the person
against whom the defamatory charge has been made. In the American jurisdiction,
no action lies by a third person for damages suffered by reason of defamation
of another person, even though the plaintiff suffers some injury therefrom. For
recovery in defamation cases, it is necessary that the publication be "of
and concerning the plaintiff." Even when a publication may be clearly
defamatory as to somebody, if the words have no personal application to the
plaintiff, they are not actionable by him. If no one is identified, there can
be no libel because no one's reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged
defamatory statement, it must appear that the plaintiff is the person with
reference to whom the statement was made. This principle is of vital importance
in cases where a group or class is defamed since, usually, the larger the
collective, the more difficult it is for an individual member to show that he
was the person at whom the defamation was directed.
If the defamatory statements were directed at a small, restricted
group of persons, they applied to any member of the group, and an individual
member could maintain an action for defamation. When the defamatory language
was used toward a small group or class, including every member, it has been
held that the defamatory language referred to each member so that each could
maintain an action. This small group or class may be a jury, persons engaged in
certain businesses, professions or employments, a restricted subdivision of a
particular class, a society, a football team, a family, small groups of union
officials, a board of public officers, or engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a
large class or group of persons, and there is nothing that points, or by proper
colloquium or innuendo can be made to apply, to a particular member of the
class or group, no member has a right of action for libel or slander. Where the
defamatory matter had no special, personal application and was so general that
no individual damages could be presumed, and where the class referred to was so
numerous that great vexation and oppression might grow out of the multiplicity
of suits, no private action could be maintained. This rule has been applied to
defamatory publications concerning groups or classes of persons engaged in a
particular business, profession or employment, directed at associations or
groups of association officials, and to those directed at miscellaneous groups
or classes of persons.
Distinguishing a small group — which if defamed entitles all its
members to sue from a large group — which if defamed entitles no one to sue —
is not always so simple. Some authorities have noted that in cases permitting
recovery, the group generally has twenty five (25) or fewer members. However,
there is usually no articulated limit on size. Suits have been permitted by
members of fairly large groups when some distinguishing characteristic of the
individual or group increases the likelihood that the statement could be
interpreted to apply individually. For example, a single player on the 60 to 70
man Oklahoma University football team was permitted to sue when a writer
accused the entire team of taking amphetamines to "hop up" its
performance; the individual was a fullback, i.e., a significant
position on the team and had played in all but two of the team's games.
A prime consideration, therefore, is the public perception of the
size of the group and whether a statement will be interpreted to refer to every
member. The more organized and cohesive a group, the easier it is to tar all
its members with the same brush and the more likely a court will permit a suit
from an individual even if the group includes more than twenty five (25)
members. At some point, however, increasing size may be seen to dilute the harm
to individuals and any resulting injury will fall beneath the threshold for a
viable lawsuit.
x x x x There are many other groupings of men than those that are
contained within the foregoing group classifications. There are all the
religions of the world, there are all the political and ideological beliefs;
there are the many colors of the human race. Group defamation has been a
fertile and dangerous weapon of attack on various racial, religious and
political minorities. Some states, therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the United States by making it a
crime to circulate insidious rumors against racial and religious groups. Thus
far, any civil remedy for such broadside defamation has been lacking.
There have been numerous attempts by individual members to seek
redress in the courts for libel on these groups, but very few have succeeded
because it felt that the groups are too large and poorly defined to support a
finding that the plaintiff was singled out for personal attack x x x x
(citations omitted).
Our conclusion therefore is that the statements published by petitioners
in the instant case did not specifically identify nor refer to any particular
individuals who were purportedly the subject of the alleged libelous
publication. Respondents can scarcely claim to having been singled out for
social censure pointedly resulting in damages.
A contrary view is expressed that what is involved in the present
case is an intentional tortious act causing mental distress and
not an action for libel. That opinion invokes Chaplinsky v. New
Hampshire22 where the U.S. Supreme Court held that words heaping extreme
profanity, intended merely to incite hostility, hatred or violence, have no
social value and do not enjoy constitutional protection; and Beauharnais
v. Illinois23 where it was also ruled that hate speech which denigrates a
group of persons identified by their religion, race or ethnic origin defames
that group and the law may validly prohibit such speech on the same ground as
defamation of an individual.
We do not agree to the contrary view articulated in the immediately
preceding paragraph. Primarily, an "emotional distress" tort action
is personal in nature, i.e., it is a civil action filed by an individual24 to assuage the injuries to his emotional tranquility due to
personal attacks on his character. It has no application in the instant case
since no particular individual was identified in the disputed article of Bulgar.
Also, the purported damage caused by the article, assuming there was any, falls
under the principle of relational harm — which includes harm
to social relationships in the community in the form of defamation; as
distinguished from the principle of reactive harm — which
includes injuries to individual emotional tranquility in the form of an infliction
of emotional distress. In their complaint, respondents clearly asserted an
alleged harm to the standing of Muslims in the community, especially to their
activities in propagating their faith in Metro Manila and in other non-Muslim
communities in the country.25 It is thus beyond cavil that the present case falls within
the application of the relational harm principle of tort
actions for defamation, rather than the reactive harm principle on
which the concept of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to
recover for the intentional infliction of emotional distress the plaintiff must
show that: (a) The conduct of the defendant was intentional or in reckless
disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c)
There was a causal connection between the defendant's conduct and the
plaintiff's mental distress; and, (d) The plaintiff's mental distress was
extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in
civilized society. The defendant's actions must have been so terrifying as
naturally to humiliate, embarrass or frighten the plaintiff.27 Generally, conduct will be found to be actionable where the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him or her to exclaim,
"Outrageous!" as his or her reaction.28
"Emotional distress" means any highly unpleasant mental
reaction such as extreme grief, shame, humiliation, embarrassment, anger,
disappointment, worry, nausea, mental suffering and anguish, shock, fright,
horror, and chagrin.29 "Severe emotional distress," in some jurisdictions,
refers to any type of severe and disabling emotional or mental condition which
may be generally recognized and diagnosed by professionals trained to do so,
including posttraumatic stress disorder, neurosis, psychosis, chronic
depression, or phobia.30 The plaintiff is required to show, among other things, that
he or she has suffered emotional distress so severe that no reasonable person
could be expected to endure it; severity of the distress is an element
of the cause of action, not simply a matter of damages.31
Any party seeking recovery for mental anguish must prove more than
mere worry, anxiety, vexation, embarrassment, or anger. Liability does not
arise from mere insults, indignities, threats, annoyances, petty expressions,
or other trivialities. In determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and required to be hardened to a
certain amount of criticism, rough language, and to occasional acts and words
that are definitely inconsiderate and unkind; the mere fact that the actor
knows that the other will regard the conduct as insulting, or will have his
feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages on
intentional infliction of emotional distress. A parody appeared in Hustler
magazine featuring the American fundamentalist preacher and evangelist Reverend
Jerry Falwell depicting him in an inebriated state having an incestuous, sexual
liaison with his mother in an outhouse. Falwell sued Hustler and its publisher
Larry Flynt for damages. The United States District Court for the Western
District of Virginia ruled that the parody was not libelous, because no
reasonable reader would have understood it as a factual assertion that Falwell
engaged in the act described. The jury, however, awarded $200,000 in damages on
a separate count of "intentional infliction of emotional distress," a
cause of action that did not require a false statement of fact to be made. The
United States Supreme Court in a unanimous decision overturned the jury verdict
of the Virginia Court and held that Reverend Falwell may not recover
for intentional infliction of emotional distress. It was argued that the
material might be deemed outrageous and may have been intended to cause severe
emotional distress, but these circumstances were not sufficient to overcome the
free speech rights guaranteed under the First Amendment of the United States
Constitution. Simply stated, an intentional tort causing emotional distress
must necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S.
High Court as a "public figure," he was an individual
particularly singled out or identified in the parody appearing on
Hustler magazine. Also, the emotional distress allegedly suffered by Reverend
Falwell involved a reactive interest — an emotional response to the parody
which supposedly injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners was
not extreme or outrageous. Neither was the emotional distress allegedly
suffered by respondents so severe that no reasonable person could be expected
to endure it. There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional
infliction of emotional distress in this manner34 —
There is virtually unanimous agreement that such ordinary
defendants are not liable for mere insult, indignity, annoyance, or even
threats, where the case is lacking in other circumstances of aggravation. The
reasons are not far to seek. Our manners, and with them our law, have not yet
progressed to the point where we are able to afford a remedy in the form of
tort damages for all intended mental disturbance. Liability of course cannot be
extended to every trivial indignity x x x x The plaintiff must necessarily be
expected and required to be hardened to a certain amount of rough language, and
to acts that are definitely inconsiderate and unkind x x x The plaintiff cannot
recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct
observation, viz:35
There is no occasion for the law to intervene in every case where
someone's feelings are hurt. There must still be freedom to express an
unflattering opinion, and some safety valve must be left through which
irascible tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to
adopt a rule of recovery for emotional harm that would "open up a wide
vista of litigation in the field of bad manners," an area in which a
"toughening of the mental hide" was thought to be a more appropriate
remedy.36 Perhaps of greater concern were the questions of causation,
proof, and the ability to accurately assess damages for emotional harm, each of
which continues to concern courts today.37
In this connection, the doctrines in Chaplinsky and Beauharnais had
largely been superseded by subsequent First Amendment doctrines. Back in
simpler times in the history of free expression the Supreme Court appeared to
espouse a theory, known as the Two-Class Theory, that treated
certain types of expression as taboo forms of speech, beneath the dignity of
the First Amendment. The most celebrated statement of this view was expressed
in Chaplinsky:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words — those which by
their very utterance inflict injury or tend to incite an immediate breach of
the peace. It has been well observed that such utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality.
Today, however, the theory is no longer viable; modern First
Amendment principles have passed it by. American courts no longer accept the
view that speech may be proscribed merely because it is "lewd,"
"profane," "insulting" or otherwise vulgar or offensive.38 Cohen v. California39 is illustrative: Paul Robert Cohen wore a jacket bearing the
words "Fuck the Draft" in a Los Angeles courthouse in April 1968,
which caused his eventual arrest. Cohen was convicted for violating a
California statute prohibiting any person from "disturb[ing] the peace x x
x by offensive conduct." The U.S. Supreme Court conceded that Cohen's expletive
contained in his jacket was "vulgar," but it concluded that his
speech was nonetheless protected by the right to free speech. It was neither
considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting" words
for it had not been directed at a person who was likely to retaliate or at
someone who could not avoid the message. In other words, no one was present in
the Los Angeles courthouse who would have regarded Cohen's speech as a direct
personal insult, nor was there any danger of reactive violence against him.
No specific individual was targeted
in the allegedly defamatory words printed on Cohen's jacket. The conviction could only be justified by California's desire to
exercise the broad power in preserving the cleanliness of discourse in the
public sphere, which the U.S. Supreme Court refused to grant to the State,
holding that no objective distinctions can be made between vulgar and nonvulgar
speech, and that the emotive elements of speech are just as essential in the
exercise of this right as the purely cognitive. As Mr. Justice Harlan so
eloquently wrote: "[O]ne man's vulgarity is another man's lyric x x x
words are often chosen as much for their emotive as their cognitive
force."40 With Cohen, the U.S. Supreme Court finally laid
the Constitutional foundation for judicial protection of provocative and
potentially offensive speech.
Similarly, libelous speech is no longer outside the First Amendment
protection. Only one small piece of the Two-Class Theory in Chaplinsky survives
— U.S. courts continue to treat "obscene" speech as not within the
protection of the First Amendment at all. With respect to the "fighting
words" doctrine, while it remains alive it was modified by the current
rigorous clear and present danger test.41 Thus, in Cohen the U.S. Supreme Court in
applying the test held that there was no showing that Cohen's jacket bearing
the words "Fuck the Draft" had threatened to provoke imminent
violence; and that protecting the sensibilities of onlookers was not
sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine,
suffered the same fate as Chaplinsky. Indeed, when Beauharnais was
decided in 1952, the Two-Class Theory was still flourishing. While concededly
the U.S. High Tribunal did not formally abandon Beauharnais, the
seminal shifts in U.S. constitutional jurisprudence substantially
undercut Beauharnais and seriously undermined what is left of
its vitality as a precedent. Among the cases that dealt a crushing impact
on Beauharnais and rendered it almost certainly a dead letter
case law are Brandenburg v. Ohio,42 and, again, Cohen v. California.43 These decisions recognize a much narrower set of permissible
grounds for restricting speech than did Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku
Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for
advocating the necessity, duty and propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or
political reforms; and for voluntarily assembling with a group formed to teach
or advocate the doctrines of criminal syndicalism. Appellant challenged the
statute and was sustained by the U.S. Supreme Court, holding that the advocacy
of illegal action becomes punishable only if such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or
produce such action.45 Except in unusual instances, Brandenburg protects
the advocacy of lawlessness as long as such speech is not translated into
action.
The importance of the Brandenburg ruling cannot be
overemphasized. Prof. Smolla affirmed that "Brandenburg must
be understood as overruling Beauharnais and eliminating the
possibility of treating group libel under the same First Amendment standards as
individual libel."46 It may well be considered as one of the lynchpins of the
modern doctrine of free speech, which seeks to give special protection to
politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured
by the filing of a class suit. As correctly pointed out by Mr. Justice Jose C.
Vitug during the deliberations, "an element of a class suit is the
adequacy of representation. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the
interest of the named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made parties as it so bears
to the total membership of the class; and, (c) any other factor bearing on the
ability of the named party to speak for the rest of the class.47
The rules require that courts must make sure that the persons
intervening should be sufficiently numerous to fully protect the interests of
all concerned. In the present controversy, Islamic Da'wah Council of the
Philippines, Inc., seeks in effect to assert the interests not only of the
Muslims in the Philippines but of the whole Muslim world as well. Private respondents
obviously lack the sufficiency of numbers to represent such a global group;
neither have they been able to demonstrate the identity of their interests with
those they seek to represent. Unless it can be shown that there can be a safe
guaranty that those absent will be adequately represented by those present, a
class suit, given its magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral
damages may be recovered only if the plaintiff is able to satisfactorily prove
the existence of the factual basis for the damages and its causal connection
with the acts complained of,49 and so it must be, as moral damages although incapable of
pecuniary estimation are designed not to impose a penalty but to compensate for
injury sustained and actual damages suffered.50 Exemplary damages, on the other hand, may only be awarded if
claimant is able to establish his right to moral, temperate, liquidated or
compensatory damages.51 Unfortunately, neither of the requirements to sustain an
award for either of these damages would appear to have been adequately
established by respondents."
In a pluralistic society like the Philippines where misinformation
about another individual's religion is as commonplace as self-appointed critics
of government, it would be more appropriate to respect the fair criticism of
religious principles, including those which may be outrageously appalling,
immensely erroneous, or those couched as fairly informative comments. The
greater danger in our society is the possibility that it may encourage the
frequency of suits among religious fundamentalists, whether Christian, Muslim,
Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil
courts a battleground to assert their spiritual ideas, and advance their
respective religious agenda.
It need not be stressed that this Court has no power to determine
which is proper religious conduct or belief; neither does it have the authority
to rule on the merits of one religion over another, nor declare which belief to
uphold or cast asunder, for the validity of religious beliefs or values are
outside the sphere of the judiciary. Such matters are better left for the
religious authorities to address what is rightfully within their doctrine and
realm of influence. Courts must be viewpoint-neutral when it comes to religious
matters if only to affirm the neutrality principle of free speech rights under
modern jurisprudence where "[a]ll ideas are treated equal in the eyes of
the First Amendment — even those ideas that are universally condemned and run
counter to constitutional principles."52 Under the right to free speech, "there is no such thing
as a false idea. However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the competition of
other ideas."53 Denying certiorari and affirming the appellate
court decision would surely create a chilling effect on the constitutional
guarantees of freedom of speech, of expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and the
Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit,
is REINSTATED and AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C .J ., Puno,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Corona and Callejo, Sr., JJ ., concur.
Mendoza, J ., in the result.
Vitug, J ., see concurring opinion.
Panganiban, J ., joins the dissenting opinion of Justice A.T.
Carpio.
Carpio, J ., see dissenting opinion.
Austria-Martinez, J ., see dissenting opinion.
Carpio-Morales, J ., joins the dissenting opinion of Justice A.T.
Carpio.
Azcuna, J ., joins the dissenting opinion of Justice
Austria-Martinez.
Separate Opinions
VITUG, J ., concurring:
The innate right of a person to an unimpaired reputation and good
name is no less a constitutional imperative than that which protects his life,
liberty or property. Thus, the law imposes upon him who attacks another's
reputation, by slanderous words or libelous publication, a liability to make
compensation for the injury done and the damages sustained.1
Private respondent Islamic Da'wah Council of the Philippines, Inc.,
a federation of more than 70 Muslim religious organizations in the country, and
the other named respondents all claim, with understandable indignation, that
they have been defamed by an item published by petitioners in Bulgar,
a tabloid, circulated in the Metro Manila area. The article reads:
"ALAM BA NINYO?
"Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay
hindi kinakain ng mga Muslim?
"Para sa kanila ang mga ito ay isang sagradong bagay. Hindi
nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa
tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa
tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang
'Ramadan'."
Private respondents, for themselves and in behalf of all Muslims,
filed the complaint before the trial court against petitioners, alleging that
the published article was defamatory and an insult to respondents. The trial
court dismissed the complaint. On appeal, the Court of Appeals reversed the
decision of the lower court and ordered petitioners to pay damages to private
respondents.
Aggrieved, petitioners are now before the Court to assail the
findings of the Court of Appeals on the existence of the elements of libel, the
right of respondents to institute the class suit, and the liability of
petitioners for moral damages, exemplary damages, attorney's fees and costs of
suit.
The present controversy stems from a civil action for damages and
not from a criminal complaint. The Civil Code recognizes the possibility of
such a civil action either pursuant to Article 26, paragraph (4), to the effect
that although it may not constitute a criminal offense, "vexing or
humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition," can give
rise to a cause of action for damages, or consonantly with Article 33 which
provides that in case of defamation, a civil complaint for damages, entirely
separate and distinct from the criminal case, may be brought by the injured
party. Both civil actions are based on tort liability under common law and
require the plaintiff to establish that he has suffered personal damage or
injury as a direct consequence of the defendant's wrongful conduct. In fine, it
must be shown that the act complained of is vexatious or defamatory of, and as
it pertains to, the claimant, thereby humiliating or besmirching the latter's
dignity and honor.
Defined in simple terms, vexation is an act of annoyance or
irritation that causes distress or agitation.2 Early American cases have refused all remedy for mental
injury, such as one caused by vexation, because of the difficulty of proof or
of measurement of damages.3 In comparatively recent times, however, the infliction of
mental distress as a basis for an independent tort action has been recognized.
It is said that "one who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress."4 Nevertheless, it has also been often held that petty insult
or indignity lacks, from its very nature, any convincing assurance that the
asserted emotional or mental distress is genuine, or that if genuine it is
serious.5 Accordingly, it is generally declared that there can be no
recovery for insults,6 indignities or threats7 which are considered to amount to nothing more than mere
annoyances or hurt feelings.8 At all events, it would be essential to prove that personal
damage is directly suffered by the plaintiff on account of the wrongful act of
the defendant.
A kindred concept, albeit of greater degree of perversity,
defamation, broadly defined, is an attack on the reputation of another, the
unprivileged publication of false statements which naturally and proximately
result in injury to another.9 It is that which tends to diminish the esteem, respect,
goodwill or confidence in which a person is held, or to excite adverse,
derogatory or unpleasant feelings or opinions against him.10 Defamation is an invasion of a "relational
interest" since it involves the opinion which others in the community may
have, or tend to have, of the plaintiff.11 The Revised Penal Code, although not the primary governing
law in this instance, provides an instructive definition of libel as being a
form of defamation expressed in writing, print, pictures, or signs,12 to wit: "A libel is a public and malicious imputation of
a crime, or 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."13
While arguably, the article subject of the complaint could be
characterized as vexatious or defamatory and as imparting an erroneous
interpretation of a Muslim practice that tends to ridicule the Islamic faith,
it is, however, impersonal on its face, its language not being directed at any
particular person but to a large segment of society. In order that defamatory
words can be actionable in court, it is essential that they are personal to the
party maligned, an ascertained or ascertainable individual.14 It is only then that plaintiff's emotions and/or reputation
can be said to have been injured; thus, the plaintiff, to recover, must show
that he or she is the person to whom the statements are directed.15 Declarations made about a large class of people cannot be
interpreted to advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a particular member of a
class, no member of such class has a right of action16 without at all impairing the equally demanding right of free
speech and expression, as well as of the press, under the bill of rights.17
If an article, for instance, states that "judges in the
Philippines are corrupt," such a general condemnation cannot reasonably be
interpreted to be pointing to each judge or to a certain judge in the
Philippines. Thus, no particular magistrate can claim to have been disgraced or
to have sustained an impaired reputation because of that article. If, on the
other hand, the article proclaims that "judges in Metro Manila are
corrupt," such statement of derogatory conduct now refers to a
relatively narrow group that might yet warrant its looking into in an
appropriate suit. And if the article accuses the "Justices of the
Supreme Court" of corruption, then there is a specific derogatory
statement about a definite number of no more than fifteen persons.
Jurisprudence would appear to suggest that in cases permitting
recovery, the group generally has 25 or fewer members.18 When statements concern groups with larger composition, the
individual members of that group would be hardput to show that the statements
are "of and concerning them."19 Although no precise limits can be set as to the size of a
group or class that would be sufficiently small, increasing size, at some
point, would be seen to dilute the harm to individuals and any resulting injury
would fall beneath the threshold for a viable lawsuit.20 This principle is said to embrace two important public policies:
1) where the group referred to is large, the courts presume that no reasonable
reader would take the statements as so literally applying to each individual
member; and 2) the limitation on liability would satisfactorily safeguard
freedom of speech and expression, as well as of press, effecting a sound
compromise between the conflicting fundamental interests involved in libel
cases.21
Thus, no recovery was allowed where the remarks complained of had
been made about correspondence schools, one school suing;22 or where there was imputation of criminality to a union, one
member suing;23 or where an attack was made on Catholic clergymen, one
clergyman suing.24
In Newsweek, Inc., vs. Intermediate Appellate Court,25 this Court dismissed a class suit for scurrilous remarks
filed by four incorporated associations of sugar planters in Negros Occidental
in behalf of all sugar planters in that province, against Newsweek, Inc., on
the ground, among other things, that the plaintiffs were not sufficiently
ascribed to in the article published by the defendant. And so also it was in an
older case,26 where the Court ratiocinated that an article directed at a
class or group of persons in broad language would not be actionable by
individuals composing the class or group unless the statements were sweeping
but, even then, it would be highly probable, said the Court, that no action
could lie "where the body is composed of so large a number of persons that
common sense would tell those to whom the publication was made that there was
room for persons connected with the body to pursue an upright and law abiding
course and that it would be unreasonable and absurd to condemn all because of
the actions of a part."
In the present case, the subject article relates to the entire Muslim
population and not just to the Islamic Da'wah Council of the Philippines or to
any of the individual respondents. There is no direct reference or allusion to
the federation or any of its members, or to any of the individual complainants.
Respondents scarcely can claim having been singled out for social censure
pointedly resulting in damages. Islamic Da'wah Council of the Philippines,
Inc., itself, much like any other artificial being or juridical entity, having
existence only in legal contemplation, would be devoid of any such real feeling
or emotion as ordinarily these terms are understood,27 and it cannot have that kind of reputation that an individual
has that could allow it to sue for damages based on impinged personal
reputation.28
WHEREFORE, I vote to GRANT the petition and to SET ASIDE the
assailed decision of the Court of Appeals, REINSTATING thereby the order of
dismissal rendered by the Regional Trial Court.
Dissenting Opinion
CARPIO, J ., dissenting:
I dissent not because the newspaper article in question is
libelous, but because it constitutes an intentional tortious act causing mental
distress to those whom private respondent Islamic Da'wah Council of the
Philippines; Inc. represents.
1. Nature of Action: Not a Libel but a Tort Case
Private respondents filed this class suit under Articles 19, 20, 21
and 26 of the Civil Code. Accordingly, private respondents stated their case as
follows:
"Statement of Case
The Civil Code of the Philippines provides:
'Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and observe
honesty and good faith.' [Art. 19]
'Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.' [Art. 20]
'Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.' [Art. 21]
'Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbor and other persons. The following and similar
acts, though they may not constitute a criminal offense, shall produce a cause
of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relation
of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious
belief, lowly station in life, place of birth, physical defect, or other
personal condition.' [Art. 26]
It is on account of the foregoing provisions of our Civil Code that
plaintiffs brought to the court 'a quo' a civil case for damages on account of
a published article at the editorial section of the defendant newspaper x x
x."1
Petitioners acknowledge that private respondents' principal cause
of action is based on tortious conduct when petitioners state in their Petition
that "[p]laintiffs rely heavily on Article 26 of the Civil Code particularly
par. 4 thereof." Petitioners, however, assert that the newspaper article
in question has not caused mental anguish, wounded feelings, moral shock,
social humiliation or similar injury to private respondents.2
Clearly, the instant case is not about libel which requires the
identification of the plaintiff in the libelous statement. If this were a libel
case under Article 303 of the Civil Code, which authorizes a separate civil action
to recover civil liability arising from a criminal offense, I would agree that
the instant case could not prosper for want of identification of the private
respondents as the libeled persons. But private respondents do not anchor their
action on Article 30 of the Civil Code.
Private respondents insist that this case is principally about
tortious conduct under Article 26 of the Civil Code. Unlike the action in
Article 30 of the Civil Code which must arise from a "criminal
offense," the action under Article 26 "may not constitute a criminal
offense." Article 26, adopted from American jurisprudence, covers several
kinds of intentional torts. Paragraph 4 of Article 26, which refers to acts
humiliating another for his religious beliefs, is embraced in the tort known as
intentional infliction of mental or emotional distress. This case must be
decided on the issue of whether there was such tortious conduct, and not
whether there was defamation that satisfied the elements of the crime of libel.
II. The Tortious Act in Question
The newspaper article in question published by petitioners states
as follows:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi
kinakain ng mga Muslim? Para sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam
sa tuwing sila kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa
tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang
'Ramadan'."
Private respondents claim that the newspaper article, which asserts
that Muslims worship the pig as their god, was published with
intent to humiliate and disparage Muslims and cast insult on Islam as a
religion in this country. The publication is not only grossly false, but is
also the complete opposite of what Muslims hold dear in their religion.
The trial court found that the newspaper article clearly imputes a
disgraceful act on Muslims. However, the trial court ruled that the article was
not libelous because the article did not identify or name the plaintiffs.
Declared the trial court:
"There is no doubt that the subject article contains an
imputation of a discreditable4 act when it portrayed the Muslims to be worshipping the pig
as their god. Likewise, there is no doubt that the subject article was
published, the newspaper 'Bulgar' containing the same having been circulated in
Metro Manila and in other parts of the country.
The defendants did not dispute these facts x x x However, x x x
identity of the person is not present.
It must be noted that the persons allegedly defamed, the herein
plaintiffs were not identified with specificity. The subject article was
directed at the Muslims without mentioning or identifying the herein
plaintiffs. x x x x."
In their appeal to the Court of Appeals, private respondents
assailed the trial court for "deciding the case as a libel case rather
than a case for damages for violation of Articles 19, 20, 21 and 26 of the
Civil Code." The Court of Appeals reversed the decision of the trial
court not on the basis of Articles 19, 20, 21 and 26, but on the ground that
the newspaper article was libelous. Thus, the Court of Appeals held:
"It is clear from the disputed article that the defamation was
directed at all adherents of the Islamic faith. It stated that pigs were sacred
and idolized as god by members of the Muslim religion. This libelous imputation
undeniably applied to the plaintiffs-appellants who are Muslims sharing the
same religious beliefs."
Thus, both the trial and appellate courts found the newspaper
article in question insulting and humiliating to Muslims, causing wounded
feelings and mental anguish to believers of Islam. This is a finding of fact
that the Court is duty bound to respect.5 This finding of fact establishes that petitioners have
inflicted on private respondents an intentional wrongful act — humiliating
persons because of their religious beliefs. Like the trial and appellate
courts, we find the newspaper article in question dripping with extreme
profanity, grossly offensive and manifestly outrageous, and devoid of any
social value. The article evidently incites religious hatred, discrimination
and hostility against Muslims.
Private respondents have certainly suffered humiliation and mental
distress because of their religious beliefs. The only question is whether the
wrongful act committed by petitioners, which does not constitute the crime of
libel, is a case of damnum absque injuria or an actionable tort under paragraph
4, Article 26 of the Civil Code.
III. Why Article 26 of the Civil Code was Enacted
The Code Commission explained the inclusion of Article 26 in the
Civil Code in this wise:
"The present laws, criminal or civil, do not adequately
cope with interferences and vexations mentioned in Article 26.
The privacy of one's home is an inviolable right. Yet the laws in
force do not squarely and effectively protect this right.
The acts referred to in No. 2 are multifarious, and yet many of
them are not within the purview of the law in force. Alienation of the
affection of another's wife or husband, unless it constituted adultery or concubinage,
is not condemned by the law, much as it may shock society. There are numerous
acts, short of criminal unfaithfulness, whereby the husband or the
wife breaks the marital vows, thus causing untold moral suffering to the other
spouse. Why should not these acts be the subject matter of a civil action for
damages? In American law, they are.
Again, there is meddling of so-called friends who poison the mind
of one or more members of the family against the other members. In this manner
many a happy family is broken up or estranged. Why should not the law try to
stop this by creating a civil action for damages?
Of the same nature is that class of acts specified in No. 3:
intriguing to cause another to be alienated from his friends.
No less serious are the acts mentioned in No. 4: vexing, or
humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect or other personal condition. The penal laws
against defamation and unjust vexation are glaringly inadequate.
Religious freedom does not
authorize anyone to heap obloquy and disrepute upon another by reason of the
latter's religion.
Not a few of the rich people treat the poor with contempt because
of the latter's lowly station in life. To a certain extent this is inevitable,
from the nature of the social make-up, but there ought to be a limit somewhere,
even when the penal laws against defamation and unjust vexation are not
transgressed. In a democracy, such a limit must be established. The courts
will recognize it in each case. Social equality is not sought by the legal
provision under consideration, but due regard for decency and propriety.
Place of birth, of physical defect and other personal conditions
are too often the pretext of humiliation cast upon other persons. Such
tampering with human personality, even though the penal laws are not violated,
should be the cause of civil action.
The article under study denounces "similar acts" which
could readily be named, for they occur with unpleasant frequency."6 (Emphasis supplied)
The intent of the Code Commission is quite clear: Article 26
specifically applies to intentional acts which fall short of being
criminal offenses. Article 24 itself expressly refers to tortious conduct
which "may not constitute criminal offenses." The purpose is
precisely to fill a gap or lacuna in the law where a person
who suffers injury because of a wrongful act not constituting a crime is left
without any redress. Under Article 26, the person responsible for such act
becomes liable for "damages, prevention and other relief." In short,
to preserve peace and harmony in the family and in the community, Article 26
seeks to eliminate cases of damnum absque injuria in human
relations.
Consequently, the elements that qualify the same acts as criminal
offenses do not apply in determining responsibility for tortious conduct under
Article 26. Where the tortious act humiliating another because of his religious
beliefs is published in a newspaper, the elements of the crime of libel need
not be satisfied before the aggrieved person can recover damages under Article
26. In intentional tort under Article 26, the offensive statements may not even
be published or broadcasted but merely hurled privately at the
offended party.
In intentional infliction of mental distress, the gravamen of the
tort is not the injury to plaintiff's reputation, but the harm to plaintiff's
mental and emotional state. In libel, the gist of the action is the injury to
plaintiff's reputation. Reputation is the community's opinion of what a person
is.7 In intentional infliction of mental distress, the opinion of
the community is immaterial to the existence of the action although the court
can consider it in awarding damages. What is material is the disturbance on
the-mental or emotional state of the plaintiff who is entitled to peace of
mind. The offensive act or statement need not identify specifically the
plaintiff as the object of the humiliation. What is important is that the
plaintiff actually suffers mental or emotional distress because he saw the act
or read the statement and it alludes to an identifiable group to which he
clearly belongs.
If one of the petitioners, without specifically naming private
respondents, hurled the same statement in private separately to each of the
private respondents, the act would be actionable under Article 26 because it
would cause mental distress to each private respondent. The fact that the
statement was made publicly in fact makes matters worse because the mental or
emotional distress caused on private respondents would even be aggravated by
the publicity. This merely illustrates that the requirements of libel have no
application in intentional torts under Article 26 where the impression of the
public is immaterial while the impact on the mind or emotion of the offended
party is all-important. That is why in American jurisprudence the tort of
intentional infliction of mental or emotional distress is completely separate
and distinct8 from the twin torts of libel and slander.9
The majority opinion, however, cites the U.S. Supreme Court
decision in Hustler Magazine v. Falwell10 as authority that a person "may not recover for
intentional infliction of emotional distress arising from a publication unless
the publication contained a false statement of fact that was made with actual
malice, that is, with a knowledge of falsity or reckless disregard for the
truth." The majority opinion's reliance on Hustler is
misplaced. The doctrine in Hustler applies only to public
figures, and the U.S. Supreme Court found that "respondent Falwell is
a 'public figure' for purposes of First Amendment law." The
U.S. Supreme Court held in Hustler that —
"We conclude that public figures and public officials may
not recover for the tort of intentional infliction of emotional distress by
reason of publication such as the one here at issue without 'a showing in
addition that the publication contains a false statement of fact which was made
with 'actual malice,' i.e., with knowledge that the statement was
false or with reckless disregard as to whether or not it was true. x x x."
(Emphasis supplied)
Evidently, Hustler allows recovery for intentional
infliction of emotional distress if the aggrieved party is a private person and
not a public figure even if there is no showing that the false statement was
made with actual malice. In the instant case, private respondents are not
public figures or public officials but ordinary private individuals represented
by private respondent Islamic Da'wah Council of the Philippines, Inc.
IV. Constitutional Guarantee of 'Full Respect for Human
Rights'
The 1987 Constitution provides that "[t]he State
values the dignity of every human person and guarantees full respect for human
rights."11 The Constitution created a Commission on Human Rights with
the function, among others, to "[M]onitor the Philippine Government's
compliance with international treaty obligations on human rights."12 The framers of the Constitution made it clear that the term
"human rights" as used in the Constitution referred to the civil and
political rights embodied in the International Covenant on Civil and Political
Rights13 to which the Philippines is a signatory. This is clear from
the following exchange in the deliberations of the Constitutional Commission:
"MR. GARCIA: But it does not mean that we will refer to each
and every specific article therein, but only to those that pertain to the civil
and politically related, as we understand it in this Commission on Human
Rights.
MR. GUINGONA: Madam President, I am not clear as to the distinction
between social and civil rights.
MR. GARCIA: There are two international covenants: the
International Covenant (on) Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. The second covenant contains
all the different rights — the rights of labor to organize, the right to
education, housing, shelter, etcetera.
MR. GUINGONA: So we are just limiting at the moment the sense of
the committee to those the Gentleman has specified.
MR. GARCIA: Yes, to civil and political rights.
MR. GUINGONA: Thank you."14 (Emphasis supplied)
Article 20 (2) of the International Covenant on Civil and Political
Rights provides that "[a]ny advocacy of x x xreligious hatred that
constitutes incitement to discrimination, hostility or violence shall be
prohibited by law." The Human Rights Committee created under the
Covenant, in its 1983 Nineteenth Session, reported to member states that:
"1. x x x In view of the nature of article 20, States parties
are obliged to adopt the necessary legislative measures prohibiting the actions
referred to therein. However, the reports have shown that in some States such
actions are neither prohibited by law nor are appropriate efforts intended or
made to prohibit them. Further, many reports failed to give sufficient
information concerning the relevant national legislation and practice.
2. x x x For article 20 to become fully effective there ought to be
a law making it clear that propaganda and advocacy as described therein are
contrary to public policy and providing for an appropriate sanction in case of
violation. x x x ."15
The Covenant, being an international treaty to which the
Philippines is a signatory, is part of the country's municipal law.16 The Covenant carries great weight in the interpretation of
the scope and meaning of the term "human rights" as used in the
Constitution. Unquestionably, the framers of the Constitution intentionally
referred to the civil and political rights embraced in the Covenant in
describing the term "human rights." The Constitution even mandates
the independent Commission on Human Rights to monitor the compliance of the
Philippine Government, which includes the judiciary, with its treaty
obligations under the Covenant.
Paragraph 4, Article 26 of the Civil Code makes civilly liable
any person who humiliates another because of his religious beliefs. This is
just a soft prohibition of advocacy of religious hatred that incites
discrimination, hostility or violence, the act the Covenant seeks to curb and
which the Philippine Government has undertaken to declare unlawful. Other
countries that signed the Covenant have criminalized the acts
prohibited under the Covenant. Since our ratification of the Covenant in 1986,
the Philippines has not enacted any special legislation to enforce the
provisions of the Covenant, on the ground that existing laws are adequate to
meet the requirements of the Covenant. There is no other law, except paragraph
4, Article 26 of the Civil Code, that can provide a sanction against
intentional conduct, falling short of a criminal act, advocating religious
hatred that incites hostility between Muslims and Christians in this country.
If we are to comply in good faith with our treaty obligations under
the Covenant, as the Constitution expressly mandates the Philippine Government,
we must give redress under Article 26 to the outrageous profanity suffered by
private respondents. Our Constitution adopts the generally accepted principles
of international law as part of the law of the land. Pacta sunt
servanda — every treaty in force binds the parties who must comply
with the treaty in good faith17 — is one such principle. Thus, if we refuse to apply Article
26 to the instant case, then we admit that we have no law to enforce the
Covenant. In effect, we admit non-compliance with the Covenant.
The Supreme Court of Canada, in interpreting Canada's obligation
under the Covenant, explained in R. v. Keegstra:18
"C.E.R.D. (Convention on the Elimination of All Forms of
Racial Discrimination) and I.C.C.P.R. (International Covenant on Civil and
Political Rights) demonstrate that the prohibition of hate promoting expression
is considered to be not only compatible with a signatory nation's guarantee of
human rights, but is as well an obligatory aspect of this guarantee. Decisions under
the European Convention for the Protection of Human Rights and Fundamental
Freedoms are also of aid in illustrating the tenor of the international
community's approach to hate propaganda and free expression. This is not to
deny that finding the correct balance between prohibiting hate propaganda and
ensuring freedom of expression has been a source of debate internationally
(see, e.g., Nathan Lerner, The U.N. Convention on the Elimination
of All Forms of Racial Discrimination (1980), at pp. 43-54). But despite debate
Canada, along with other members of the international community, has indicated
a commitment to prohibiting hate propaganda, and in my opinion this court must
have regard to that commitment in investigating the nature of the government
objective behind s. 319(2) of the Criminal Code. That the international
community has collectively acted to condemn hate propaganda, and to oblige
State Parties to C.E.R.D. and I.C.C.P.R. to prohibit such expression, thus
emphasizes the importance of the objective behind s. 319(2) and the principles
of equality and the inherent dignity of all persons that infuse both
international human rights and the Charter."
As a signatory to the Covenant, the Philippines is, like, Canada,
obligated under international law and the 1987 Constitution to protect the
inherent dignity and human rights of all its citizens.
V. Freedom of Expression and Profane Utterances
The blatant profanity contained in the newspaper article in
question is not the speech that is protected by the constitutional guarantee of
freedom of expression. Words that heap extreme profanity, intended merely to
incite hostility, hatred or violence, have no social value and do not enjoy
constitutional protection. As explained by the United States Supreme Court in
the landmark case of Chaplinsky v. New Hampshire:19
"Allowing the broadest scope to the language and purpose of
the Fourteenth Amendment, it is well understood that the right of free speech
is not absolute at all times and under all circumstances. There are
certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the
insulting or 'fighting' words — those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order
and morality. Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and
its punishment as a criminal act would raise no question under that
instrument." (Emphasis supplied)
Chaplinsky expressly includes profane utterances as
belonging to the narrowly limited classes of speech that are not constitutionally
protected. Profane utterances, like asserting that Muslims worship the pig as
their God, have no social value meriting constitutional protection. Black's Law
Dictionary (6th Ed.) defines the words "profane" and
"profanity" as follows:
"Profane. Irreverence toward God or holy things.
Writing, speaking, or acting, in manifest or implied contempt of sacred things.
Town of Torrington v. Taylor, 59 Wyo. 109, 137 P.2d 621, 624; Duncan v. U.S.,
C.C.A. Or., 48 F.2d 128, 133. That which has not been consecrated."
"Profanity. Irreverence towards sacred things;
particularly, an irreverent and blasphemous use of the name of God. Vulgar,
irreverent, or coarse language. It is a federal offense to utter an obscene,
indecent, or profane language on radio. 18 U.S.C.A. § 1464. See also
Obscenity."
The majority opinion states that the doctrine in Chaplinsky "had
largely been superseded by subsequent First Amendment doctrines." The
majority opinion then cites the 1971 case of Cohen v. California 20 as an "illustrative" case that "American
courts no longer accept the view that speech may be proscribed merely because
it is 'lewd,' 'profane,' 'insulting' or otherwise vulgar or offensive."
However, Hustler Magazine v. Falwell,21 a 1988 case which the majority opinion also cites, clearly
explains the state of American law on this matter, thus:
"Admittedly, these oft-repeated First Amendment principles,
like other principles, are subject to limitations. We recognized in Pacifica
Foundation that speech that is 'vulgar, offensive, and shocking' is 'not
entitled to absolute constitutional protection under all circumstances.'
In Chaplinsky v. New Hampshire, we held that that a State could
lawfully punish an individual for the use of insulting 'fighting words' — those
which by their very utterance inflict injury or tend to incite an immediate
breach of the peace.' These limitations are but recognition of the observation
in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472 U.S.
749 (1985) that this Court has 'long recognized that not all speech is of equal
First Amendment importance.' x x x ." [other citations omitted] x x
x."
Indeed, while democratic societies maintain a deep commitment to
the principle that debate on public issues should be uninhibited, robust and
wide open, this free debate has never been meant to include libelous, obscene
or profane utterances against private individuals.22 Clearly, the newspaper article in question, dripping with
extreme profanity, does not enjoy the protection of the constitutional
guarantee of freedom of speech.
VI. Court's Duty and Power to Enforce Constitutional Rights
The 1987 Constitution has conferred on the Court the power to "[p]romulgate
rules concerning the protection and enforcement of constitutional rights."
This is an innovation in the 1987 Constitution to insure, in the words of
former Chief Justice Roberto R. Concepcion, one of the framers of the
Constitution, that "the protection and enforcement of these constitutional
rights is something that the courts have to consider in the exercise of their
judicial power.23 This provision stresses that constitutional rights, whether
found in the Bill of Rights or in other provisions of the Constitution like in
the Declaration of Principles and State Policies, are "not merely
declaratory but are also enforceable."24
One such right, the enforcement and protection of which is
expressly guaranteed by the State under the Constitution, is the right to
"full respect for human rights." The trial and appellate courts have
found that private respondents' religious beliefs and practices have been
twisted, ridiculed and vilified by petitioners. This is a clear violation of
the human rights of private respondents under the Constitution and the
International Covenant on Civil and Political Rights. It now becomes the duty
of the Court, as the guardian of the fundamental rights of the people, to
exercise its power to protect and enforce the constitutional rights of private
respondents.
The Court, pursuant to its rule making power, can require that in
actions like the instant case, the plaintiffs must bring a class suit. This
will avoid multiplicity of suits considering the numerous potential plaintiffs
all over the country. A judgment in a class suit, whether favorable or
unfavorable to the class, is binding under the res judicata principle
on all members of the class whether or not they were before the court.25 This rule will address the fear that cases will swamp the
courts all over the country if profanities against religious groups are made
actionable under Article 26.
VII. The Special Circumstance of Muslim Secession in the
South
Limitations on freedom of expression have always been rooted on
special circumstances confronting a society in its historical development. In
the 1950s, faced with rising racial tension in American society, the U.S
Supreme Court ruled in Beauharnais v. Illinois26 that hate speech which denigrates a group of persons defined
by their religion, race or ethnic origin defames that group and the law may
validly prohibit such speech on the same ground as defamation of an individual.
This was the only time that the U.S. Supreme Court upheld group libel, and
since then, there has been a consistent retreat from this doctrine as blacks
and other ethnic groups became more assimilated into the mainstream of American
society. Beauharnais expressly acknowledged that race riots and massive
immigration of unassimilated ethnic groups justified the legislature in
"punishing x x x libels directed at designated collectives and flagrantly
disseminated."
The majority opinion states also that Beauharnais has
been superseded by Brandenburg v. Ohio."27 The majority opinion explains that Brandenburg, a
1969 decision, ruled that "advocacy of illegal action becomes punishable
only if such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action." While Beauharnais has
been apparently weakened by subsequent decisions of the U.S. Supreme Court, it
was not overturned in Brandenburg which did not even cite or
mention Beauharnais. What Brandenburg overturned
was Whitney v. California,28 thus —
"Accordingly, we are here confronted with a statute which, by
its own words and as applied, purports to punish mere advocacy and to forbid,
on pain of criminal punishment, assembly with others merely to advocate the
described type of action. Such a statute falls within the condemnation of the
First and Fourteenth Amendments. The contrary teaching of Whitney v.
California, supra, cannot be supported, and that decision is therefore
overruled." (Emphasis supplied)
In any event, Brandenburg involved the
constitutionality of a criminal statute which sought to punish the mere
advocacy of violence as a means to accomplish industrial or political reform.
This is distinctly different from the instant case, which involves profane
utterances that have long been recognized as devoid of social value and outside
the purview of constitutionally protected speech.29
In 1990, the Canadian Supreme Court, in R. v. Keegstra,30 upheld a law criminalizing hate speech toward any
section of the public distinguished by color, race, religion or ethnic
origin. The Canadian Supreme Court rejected the clear and present danger test
of the U.S. Supreme Court, stating that it did not address the psychological
trauma hate propaganda causes and the subtle and incremental way hate
propaganda works. The Canadian Supreme Court found the U.S. Supreme
Court's Beauharnais decision more reflective of Canadian
values rather than later U.S. decisions that weakened Beauharnais.
The Canadian Supreme Court handed down Keegstra at a time when
Canada was becoming a multi-racial society following the influx of immigrants
of different color, ethnic origin and religion. The following passages in Keegstra are
instructive:
"A myriad of sources — both judicial and academic — offer
reviews of First Amendment jurisprudence as it pertains to hate propaganda.
Central to most discussions is the 1952 case of Beauharnais v. Illinois,
where the Supreme Court of the United States upheld as constitutional a criminal
statute forbidding certain types of group defamation. Though never
overruled, Beauharnais appears to have been weakened by later
pronouncements of the Supreme Court (see, e.g., Garrison v. Louisiana,
379 U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966); New
York Times Co. v. Sullivan, 376 U.S. 254 1964); Brandenburg v. Ohio,
395 U.S. 444 (1969); and Cohen v. California, 403 U.S. 15 (1971)).
The trend reflected in many of these pronouncements is to protect offensive,
public invective as long as the speaker has not knowingly lied and there exists
no clear and present danger of violence or insurrection.
xxx xxx
xxx
The question that concerns us in this appeal is not, of course,
what the law is or should be in the United States. But it is important to be
explicit as to the reasons why or why not American jurisprudence may be useful
in the s. 1 analysis of s. 319(2) of the Criminal Code. In the United States, a
collection of fundamental rights has been constitutionally protected for over
200 years. The resulting practical and theoretical experience is immense, and
should not be overlooked by Canadian courts. On the other hand, we must examine
American constitutional law with a critical eye, and in this respect La Forest
J. has noted in R. v. Rahey, (1987) 1 S.C.R. 588 at 639:
'While it is natural and even desirable for Canadian courts to
refer to American constitutional jurisprudence in seeking to elucidate the
meaning of Charter guarantees that have counterparts in the United States
Constitution, they should be wary of drawing too ready a parallel between
constitutions born to different countries in different ages and in very
different circumstances. . .'
Canada and the United States are not alike in every way, nor have
the documents entrenching human rights in our two countries arisen in the same
context. It is only common sense to recognize that, just as similarities will
justify borrowing from the American experience, differences may require that
Canada's constitutional vision depart from that endorsed in the United
States." (Other citations omitted)
xxx xxx
xxx
First, it is not entirely clear that Beauharnais must
conflict with existing First Amendment doctrine. Credible arguments have been
made that later Supreme Court cases do not necessarily erode its legitimacy
(see, e.g., Kenneth Lasson, "Racial Defamation as Free Speech: Abusing the
First Amendment" (1985), 17 Colum. Human Rights L. Rev. 11). Indeed, there
exists a growing body of academic writing in the United States which evinces a
stronger focus upon the way in which hate propaganda can undermine the very
values which free speech is said to protect. This body of writing is receptive
to the idea that, were the issue addressed from this new perspective, First
Amendment doctrine might be able to accommodate statutes prohibiting hate
propaganda (see, e.g., Richard Delgado, "Words That Wound: A Tort Action
for Racial Insults, Epithets, and Name-Calling" (1982), 17 Harv. C.R.-C.L.
Law Rev. 133; Irving Horowitz, "Skokie, the ACLU and the Endurance of
Democratic Theory" (1979), 43 Law & Contemp. Prob. 328; Lasson, op.
cit., at pp. 20–30; Mari Matsuda, "Public Response to Racist Speech:
Considering the Victim's Story," (1989), 87 Mich. L. Rev. 2320, at p.
2348; "Doe v. University of Michigan: First Amendment — Racist and
Sexist Expression on Campus — Court Strikes Down University Limits on Hate
Speech" (1990), 103 Harv. L. Rev. 1397)."
In deciding Keegstra, the Canadian Supreme Court also
relied on Canada's treaty obligations under the United Nations International
Covenant on Civil and Political Rights which requires signatory states to
prohibit any "advocacy of x x x religious hatred that constitutes
incitement to discrimination, hostility or violence." During the
negotiations of the Covenant, the United States objected to this provision on
free speech grounds. When it finally ratified the Covenant, the United States
made a reservation rejecting this provision insofar as it conflicts with U.S.
constitutional protections.31 The Covenant opened for ratification on December 19, 1966 and
entered into force on March 23, 1976. The Philippines ratified the Covenant in
1986 without any reservation, just like Canada. The 1987 Constitution of the
Philippines even created a Commission on Human Rights to "[M]onitor the
Philippine Government's compliance with international treaty obligations on
human rights." Obviously, Canada and the Philippines are alike in their
obligations under the Covenant, but the United States is differently situated.32
In our country, there has been a long festering and bloody Muslim
secessionist movement in the South, fueled not only by poverty but also by the
palpable feeling among Muslims that the Christian majority is not treating
Muslims fairly. Private respondents in the instant case, despite the outrageous
profanity hurled at them by petitioners, chose not to join their secessionist
brethren in the armed struggle but instead decided to petition our courts for
legal redress of their grievance. They could have easily retaliated by flinging
their own blasphemous invectives against the Christian religion. They did not,
realizing perhaps that answering profanity with more profanity would mean
answering hatred with more hatred, further dividing rather than unifying the
Filipino nation.
Just last November of 2002, a Christian newspaper in Nigeria where
the Miss World contest was being held opined that the Prophet Mohammed would
have approved of the beauty contest. The newspaper stated: "What would
Mohammed think? In all honesty, he would have probably chosen a wife from one
of them." These words provoked bloody rioting in Nigeria among Muslims who
felt insulted by the article. Hundreds died in the religious riots. Yet the
offensive article in the Nigerian newspaper pales in comparison to the utterly
profane newspaper article in the instant case.
Indeed, private respondent Islamic Da'wah Council of the
Philippines, a federation of more than 70 Muslim religious organizations in the
Philippines, deserves commendation for bringing this case before our courts for
a peaceful and legal resolution of the issue. Private respondents have placed
their trust and faith in our courts, knowing and insisting that they are
entitled to a just remedy under paragraph 4, Article 26 of the Civil Code. It
is time to breathe life to this long dormant provision of the Civil Code, to
give even just a token redress to religious minorities who
suffer mental and emotional distress from mindless profanity committed by
irresponsible persons belonging to the religious majority. In the process we
will contribute in avoiding a further cleavage in the fabric of our nation, and
demonstrate to our Muslim brothers that their grievances can be redressed under
the rule of law.
The instant case does not even call for a re-examination of the
clear and present danger test which we have adopted in this jurisdiction in
determining the constitutionality of legislation that impinges on civil
liberties.33 Even under the clear and present danger test, profane utterances
are not constitutionally protected at least with respect to profanities
directed against private individuals. The special circumstance involving the
Muslim secessionist movement in the South should make us more sensitive to the
grievances of our Muslim brothers who continue to have faith in the rule of law
in this country.
Since the peace of mind of private respondents has been violated by
the publication of the profane article in question, Article 26 of the Civil
Code mandates that the tortious conduct "shall produce a cause of action
for damages, prevention and other relief." Article 2219 of the same Code
provides that "[M]oral damages may be recovered in x x x actions referred
to in Articles 21, 26 x x x ." Private respondents are entitled to moral
damages because, as duly established by the testimonies of prominent Muslims,34 private respondents suffered emotional distress which was
evidently the proximate result of the petitioners' wrongful publication of the
article in question.35
VII. Conclusion
Almost thirty years ago, I had occasion to write about Article 26
in this wise:
"At the time Article 26 was lifted by the Code Commission from
American jurisprudence, many of the rights embodied therein were not yet widely
accepted by American courts, and in fact even now at least one, the right to
privacy, is still struggling to gain recognition in some states. While we have
been quick to leapfrog American state decisions in recognizing such rights, we
have, however, been painfully slow in galvanizing the same in actual cases. To
date Article 26 stands almost as a mere decorative provision in our statutes;
but it may be harnessed fruitfully anytime."36
Now is the time to apply this provision of law since the instant
case falls clearly within paragraph 4 of Article 26. Applying Article 26 will
not undermine freedom of speech since the profane publication in question
belongs to the class of speech that clearly does not enjoy constitutional
protection. Applying Article 26 demonstrates good faith compliance with our
treaty obligations under the International Covenant on Civil and Political
Rights. Applying Article 26 implements the constitutional policy that the
"State values the dignity of every human person and guarantees full
respect for human rights." Applying Article 26 constitutes compliance by
the Court of its constitutional duty to protect and enforce constitutional
rights. Applying Article 26 will help bind the wounds that mindless profanities
inflict on religious minorities in violation of their human rights.
Accordingly, I vote to dismiss the petition and affirm the award by
the Court of Appeals of P50,000.00 moral damages, P10,000.00 exemplary damages,
and P10,000.00 attorney's fees to respondent Islamic Da'wah Council of the
Philippines, Inc. based on paragraph 4, Article 26 of the Civil Code.
Dissenting Opinion
AUSTRIA-MARTINEZ, J., dissenting:
I vote to affirm the assailed decision of the Court of Appeals with
certain modifications.
For a proper perspective of the issues involved in the present
petition, it must be emphasized that the portion of the subject article which
alludes to the Muslims as not eating pork because it is dirty is not the bone
of contention of respondents, because admittedly, the Muslims may eat pork if
driven by necessity, as expressed in the Quran, to wit:
"Allah has forbidden you only what dies of itself and blood
and the flesh of swine and that over which any other (name) than (that
of) Allah has been invoked. Then, whoever is driven by necessity, not desiring,
nor exceeding the limit, no sin is upon him."1
The focal point of private respondents' claim for damages is the
insult heaped upon them because of the malicious publication that the Muslims
worship the pig as their God which is absolutely contrary to their basic belief
as Muslims that there is only one God they call Allah, and, that the greatest
sin in Islam is to worship things or persons other than Allah.2
Petitioners are liable for damages both under Articles 33 and 26(4)
of the Civil Code. The instances that can be brought under Article 26 may also
be subject to an action for defamation under Article 33. In such a case, the
action brought under Article 26 is an alternative remedy, and the plaintiff can
proceed upon either theory, or both, although he can have but one recovery for
a single instance of publicity.3
Article 33 of the Civil Code provides:
"Article 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)
Necessarily, Article 353 of the Revised Penal Code comes into play.
In the present civil case, it is necessary that respondents are able to
establish by preponderance of evidence the following elements of defamation:
"1. That there must be an imputation of a crime,
or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance.
"2. That the imputation must be made
publicly.
"3. That it must be malicious.
"4. That the imputation must be directed at a
natural or juridical person, or one who is dead.
"5. That the imputation must tend to cause the dishonor, discredit
or contempt of the person defamed."4
An allegation is considered defamatory if it ascribes to a person
the commission of a crime, the possession of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends
to blacken the memory of one who is dead.5
As a general rule, words, written
or printed, are libelous per se if they tend to expose a person to public
hatred, contempt, ridicule, aversion, or disgrace, induce an evil opinion of
him in the minds of right thinking persons, and deprive him of their friendly
intercourse in society, regardless of whether they actually produce such
results.6 Otherwise stated; words published are libelous if they discredit
plaintiff in the minds of any considerable and respectable class in the
community, taking into consideration the emotions, prejudices, and intolerance
of mankind.7 It has been held that it is not necessary that the published
statements make all or even a majority of those who read them think any less of
the person defamed, but it is enough if a noticeable part of those who do read
the statements are made to hate, despise, scorn or be contemptuous of the
person concerning whom the false statements are published.8
Thus, in order to be libelous per se, the defamatory
words must be of such a nature that the court can presume as a matter of law
that they will tend to disgrace and degrade the person or hold him up to public
hatred, contempt, ridicule or cause him to be shunned and avoided; in other
words, they must reflect on his integrity, his character, and his good name and
standing in the community, and tend to expose him to public hatred, contempt,
or disgrace.9 The imputation must be one which tends to affect plaintiff in
a class of society whose standard of opinion the court can recognize.10 It is not sufficient, standing alone, that the language is
unpleasant and annoys or irks plaintiff, and subjects him to jests or banter,
so as to affect his feelings.11
In the present case, it is evident that the subject article
attributes a discreditable or dishonorable act or condition to all Muslims in
general, a derision of the religious beliefs of the Muslims and of the
objectives of respondent Council to herald the truth about Islam, in
particular. The portion of the assailed article which declares that the Muslims
worship the pigs as God is obnoxiously contrary to the basic belief of the
Muslims.
Thus, the article is not only an imputation of irreligious conduct
but also a downright misrepresentation of the religious beliefs of
Muslims. It has been held that scandalous matter is not necessary to
make a libel; it is enough if the defendant induces an ill opinion to be held
of the plaintiff, or to make him contemptible or ridiculous; 12 or that the imputation tends
to cause dishonor, discredit or contempt of the offended party.13
Petitioners' stance that the article "Alam Ba Ninyo?" is
but an expression of belief or opinion does not justify said publication. It
cannot be considered as a mere information being disseminated. Petitioners'
defense that the article itself was merely a contribution of a reader, or that
the writer was soliciting opinion from the readers, does not hold water, since
the article did not in any way refer to such circumstance. Verily, the article,
read as a whole with the other paragraphs, calls the attention of the readers
to a statement of fact, not fiction, and that the writer speaks with authority
on the subject matter. Bulgar in fact prides itself as being the
"Pahayagan Ng Katotohanan".
Significantly, liability for libel does not depend on the intention
of the defamer, but on the fact of the defamation.14 In matters of libel, the question is not what the writer of
an alleged libel means, but what is the meaning of the words he has used.15 The meaning of the writer is quite immaterial. The question
is, not what the writer meant, but what he conveyed to those who heard or read.16
In other words, it is not the intention of the speaker or writer,
or the understanding of the plaintiff or of any particular hearer or reader, by
which the actionable quality of the words is to be determined. It is the
meaning that the words in fact conveyed, rather than the effect which the
language complained of was fairly calculated to produce and would naturally
produce on the minds of persons of reasonable understanding, discretion, and
candor, taking into consideration accompanying explanations and surrounding
circumstances which were known to the hearer or reader. The alleged defamatory
statement should be construed not only as to the expression used but also with
respect to the whole scope and apparent object of the writer.17
Want of intention to vilify does not render an objectionable
publication any the less a libel and a publication is not excused by the
publisher's ignorance that it contains libelous matter.18 The state of mind of the person who publishes a libel is
immaterial in determining liability. The law looks at the tendency and
consequences of the publication rather than the motive or intention of the
writer or publisher.19 It does not signify what the motive of the person publishing
the libel was, or whether he intended it to have a libelous meaning or not.20 The defendant may not have intended to injure the plaintiff's
reputation at all and he may have published the words by mistake or
inadvertence,21 or in jest, or without intending to refer, or knowing that he
was referring, to the plaintiff, or any existing person, or again he may have
been actuated by the best motives in publishing the words, but such facts will
usually afford the defendant no defense, though they may be urged in mitigation
of damages.22
Tested with the foregoing principles of law, there is no doubt that
the article in question is defamatory under Article 33 of the Civil Code. If
the imputation is defamatory,23 the Court has held that malice is presumed and the burden of
overcoming the presumption of malice by mere preponderance of evidence rested
on the petitioners.
A careful examination of the records of the case does not reveal
any cogent reason that would set aside the presumption of malice. In fact,
there is convincing evidence that the publication of the assailed article was
malicious, as more extensively discussed in the latter portion of herein
opinion.
Furthermore, there is no showing that the instant case falls under
any of the exceptions provided for in Article 354 of the Revised Penal Code, to
wit:
"Art. 354. Requirement of 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:
"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."
Consequently, there is no compelling reason to disregard the
findings of the Court of Appeals that no evidence was presented to overcome
said presumption of malice.
On the matter of publication, there is no dispute that the same is
present, as the subject article was admittedly published in the newspaper
"Bulgar" which was circulated in Metro Manila and in other parts of
the country.
It must be emphasized that not only did both the trial court and
the appellate court find that the subject article was published, they also held
that the subject article contains an imputation of a discreditable act when it
portrayed the Muslims to be worshipping the pig as their god.
But the trial court and the appellate court differed as to the
presence of the element of the identity of the persons defamed. While the trial
court held that the libelous article does not identify the personalities of the
persons defamed and therefore respondents had no cause of action, the Court of
Appeals ruled that the Muslims were the defamed persons and respondent IDCP has
the requisite personality to sue for damages. The appellate court is right.
Specific identity of the person defamed means that the third person
who read or learned about the libelous article must know that it referred to
the plaintiff.24 In order to maintain a libel suit, it is essential that the
victim is identifiable although it is not necessary that he be named; it is
likewise not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person
could identify him as the object of the libelous publication.25
It cannot be refuted that the obvious victims in the article in
question are specifically identified — the Muslims. The principle laid down
in Newsweek, Inc. vs. Intermediate Appellate Court,26 that "where the defamation is alleged to have been
directed at a group or class, it is essential that the statement must
be so sweeping or all-embracing as to apply to every individual in that class
or group, or sufficiently specific so that each individual in that class or
group can prove that the defamatory statement specifically pointed to him, so
that he can bring the action separately, if need be," obviously applies to
the present case. Certainly, the defamatory imputation contained in the subject
article is a sweeping statement affecting a common or general interest of all
Muslims, that is, their religious belief in Allah as the one and only God. The
publication was directed against all Muslims without exceptions and it is not
necessary to name each one of them as they could only have one cause of action
which is the damage suffered by them caused by the insult inflicted on their
basic religious tenets.
All premises considered, petitioners are indeed liable for damages
under Article 33 of the Civil Code.
Significantly, the respondents brought to the attention of the
Court of Appeals the failure of the trial court to appreciate Article 26(4) of
the Civil Code, but the appellate court simply delved exclusively on the
applicability of libel and the existence of its elements.
Ordinarily, the Court may only pass upon errors assigned.27 However, this rule is not without exceptions. The Court has
ruled that an appellate court is accorded a broad discretionary power to
consider errors not assigned, involving, among others, (1) matters not assigned
as errors on appeal but consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice; (2) matters not specifically
assigned as errors on appeal but raised in the trial court and are matters of
record having some bearing on the issue submitted which the parties failed to
raise or which the lower court ignored; and (3) matters not assigned as errors
on appeal but upon which the determination of a question properly assigned, is
dependent.28 Evidently, all three exceptions apply to the present case.
Necessarily, the Court has to dwell on the applicability of Article
26 (4) of the Civil Code in support of respondents' claim for damages.
Before proceeding any further, a distinction must first be made
between a cause of action based on libel or defamation, whether in a criminal
or civil case, and one based on Article 26. In libel, the gravamen of the claim
is reputational harm; whereas, under Article 26, it can be the embarrassment,
emotional harm or mental distress caused upon a person.29 In libel cases, its four (4) constitutive elements, to wit:
(a) defamatory imputation; (b) malice; (c) publication; and (d) identifiability
of the victim,30 must be established, by mere preponderance of evidence in a
civil case which herein petitioners have done in the present case. Said
elements, however, are not essential in a cause of action based on tort under
Article 26, wherein one is liable for personal injury, whether administered
intentionally, wantonly or by negligence.31 Personal injury herein refers not only to reputation but also
encompasses character, conduct, manner, and habits of a person.32
American Tort Law, on the basis of which, Philippine Tort Law was
patterned, has recognized that if the plaintiff is shown to have suffered a
wrong, the mere paucity of cases or absence of any precedent does not
constitute sufficient reason for refusing relief if a sound principle of law
can be found which governs, or which by analogy ought to govern.33 The fact that a case is novel does not operate to defeat
recovery, if it can be brought within the general rules of law applicable to
torts.34 Neither is the fact that a tort action does not fit into a
nicely defined or established "cubbyhole" of the law has been said
not to warrant, in itself, the denial of relief to one who is injured.35 Thus, to ignore the application of the proper provision of
law in the instant case would be an abdication of the judiciary's primordial
objective, which is, the just resolution of disputes.
Article 26 is an integral part of the Chapter in the Civil Code on
human relations, "designed to indicate certain norms that spring from the
fountain of good conscience. These guides for human conduct should run as
golden threads through society, to the end that law may approach its supreme
ideal, which is the sway and dominance of justice."36 Article 26, which enhances and preserves human dignity and
personality, provides:
"Article 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other relief.
"(1) Prying into the privacy of another's residence;
"(2) Meddling with or disturbing the private life or family
relations of another;
"(3) Intriguing to cause another to be alienated from his
friends;
"(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physical defect, or
other personal condition." (Emphasis supplied)
The raison d'être for the foregoing statutory
provision, as stated by the Code Commission in its Report, is worth setting
forth verbatim:
"The sacredness of human personality is a concomitant of
every plan for human amelioration. The touchstone of every system of laws, of
the culture and civilization of every country, is how far it dignifies man.
If in legislation, inadequate regard is observed for human life and safety; if
the laws do not sufficiently forestall human suffering, or do not try
effectively to curb those factors or influences that wound the noblest
sentiments; if the statutes insufficiently protect persons from being
unjustly humiliated, in short, if human personality is not properly exalted
— then the laws are indeed defective. Sad to say, such is to some "degree
the present state of legislation in the Philippines. To remedy this grave fault
in the laws is one of the principal aims of the Project of Civil Code.
Instances will now be specified.
"The present laws, criminal and civil, do not adequately
cope with the interferences and vexations mentioned in Article 26."37 (Emphasis supplied)
Thus, Article 26 provides aggrieved individuals with a legal remedy
against violations of human personality, even though such do not amount to
violations of penal laws. Social equality is not sought, but simply due regard
for decency and propriety.38
Among the rights covered by Article 26 are: (a) personal dignity,
(b) personal security; (c) family relations, (d) social intercourse, (e)
privacy and (f) peace of mind.39 However, it has been held that the violations mentioned in
the Article 26 are not exclusive but are merely examples and do not preclude
other similar acts.40 Thus, disturbing or offensive utterances, such as threats,
false statements, or insulting, humiliating, scandalous, or abusive language,41 may give rise to an action in tort where such language causes
mental or emotional disturbance, as in this case, or bodily injury or illness
resulting therefrom.42
Paragraph 4 of Article 26 which makes one liable for vexing or
humiliating another on account of his religious beliefs finds proper
application in the case at bar. The Code Commission stressed in no uncertain
terms that religious freedom does not authorize anyone to heap obloquy and
disrepute upon another by reason of the latter's religion.43
In support of respondents' claim for damages, Professor Abdul Rafih
Sayedy, Dean of the Institute of Islamic Affairs of the University of the
Philippines, testified in this wise:
"WITNESS:
"A: First, I understood that this
tabloid is the voice of katotohanan but regarding this article it is not
'katotohanan'. To the Muslim it is a blasphemy. It is an abuse and desecration
and belief of the Muslims and the Muslims are commanded by God to worship no
other than Him. So how could the publisher publish that the Muslims are
worshipping pigs, that Muslims in his mind do not eat animals while they are
also eating slaughtered chicken, cow and carabao and other non-prohibited
animals. So to the Muslims this is an insult, not only to the Muslims in
Mindanao but to the whole Muslim community. This is a blasphemy to the Muslims.
"Q As a Muslim, Professor Sayedy,
how do you feel about this article?
"A I feel insulted and I feel that
the beliefs of the Muslims are over abused by the publisher and it is a
defamation and desecration on the religion of the Islam.
"Q What is the concept of God
insofar as the religion of Islam is concerned?
"A The concept of God is that God
is the only God, He was not begotten and He is to be worshipped and no other to
be worshipped aside from him, He has no beginning and has no end, He is the
creator of all creatures and He should be honored by all creatures."44
Clearly therefrom, the assailed article is vexatious and
humiliating to Muslims as they adore only one God, they call Allah. Muslims are
called Muslims because they sincerely believe in the Quran and the Hadith (the
Saying and the Conduct of the Prophet). It cannot be over-stressed that Muslims
do not eat pork because it is forbidden in the Quran for being unclean not
because they hold pigs as sacred and worship them; and that to the Muslims, the
greatest sin in Islam is to worship persons or things other than Allah.45
Petitioner Myla C. Aguja, who testified as Myla Tabora, admitted in
open court that she: wrote the subject article; was a graduate of "Mass
Com"; based the said article on her interpretation of what she recalled
she had read in Reader's Digest while she was still in high school; and did not
verify if what she recalled was true46 . Such shocking irresponsible attitude on her part who at
that time was an Assistant Editor of Bulgar is utterly malicious, in the same
degree as the failure of the rest of the petitioners (except Binegas, Jr.)47 to verify the truthfulness of the subject article, for which
they should be held liable for damages.
The freedom of expression and the right of speech and of the press
are, to be sure, among the most zealously protected rights in the Constitution.
But the constitutional right of freedom of expression may not be availed of to
broadcast lies or half-truths nor may it be used to insult others, for such
would be contrary to the plain mandate of the Civil Code for each person
"to respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons." The freedom of speech does not require
a journalist to guarantee the truth of what he says or publishes but it does
prohibit publishing or circulating statements in reckless disregard without any
bona fide effort to ascertain the truth thereof.48
By causing the assailed article to be published in reckless
disregard of the truth thereof, petitioners publisher MVRS, Editor-in-Chief
Mars C. Laconsay, Assistant Editor and writer Myla C. Aguja (Myla Tabora)
exhibited utter irresponsibility and acted contrary to the Code of Ethics
adopted by the journalism profession in the Philippines, for which they deserve
condemnation. The assailed article has falsely portrayed all Muslims as
worshippers of pig or swine and thus, perverted their religious beliefs and
demeaned the Muslims as a segment of human society. It belittled the Muslims by
inverting the relative importance of their religious beliefs and practice,
thereby disgracing the ideals and aspirations of the Muslim people. Such
amounts to a violation of their personal dignity and peace of mind, which are
the very rights affirmed by Article 26.
Petitioner Binegas should be absolved from liability. It is not
refuted that the principal function of petitioner Binegas, Jr., as Circulation
Manager of Bulgar, was to supervise the delivery and the distribution of the
paper, monitor the accounts of the agents and schedule the circulation
personnel. It is likewise unrebutted that petitioner Binegas, Jr. was never
consulted on what articles are to be published; that he had no authority to
decide whether or not a certain publication of Bulgar shall be circulated; and
that his only duty was to distribute the issue after its printing.49 As such, his duty being ministerial in character, petitioner
Binegas, Jr., should have been exonerated from liability.
Now, do plaintiffs-respondents IDCP and its officers have the
requisite personality to institute the suit? The answer is in the affirmative.
Respondents IDCP and its officers have the requisite personality to institute
the suit inasmuch as the action is properly a class suit.
The concept of a "true" class suit has been elucidated
upon in Re: Request of the Heirs of the Passengers of Doña Paz,50 thus:
"What makes a situation a
proper case for a class suit is the circumstance that there is only one right
or cause of action pertaining or belonging in common to many persons, not
separately or severally to distinct individuals.
'The 'true' class action, which is the invention of equity, is one
which involves the enforcement of a right which is joint, common, or secondary
or derivative. x x (It) is a suit wherein, but for the class action device, the
joinder of all interested parties would be essential.
'A 'true class action' — as distinguished from the so-called hybrid
and the spurious class action in U.S. Federal Practice — 'involves principles
of compulsory joinder, since x x (were it not) for the numerosity of the class
members all should x x (be) before the court. Included within the true class
suit x x (are) the shareholders' derivative suit and a class action by or against
an unincorporated association x x. A judgment in a true class suit, whether
favorable or unfavorable to the class, is binding under res judicata principles
upon all the members of the class, whether or not they were before the court.
It is the nondivisible nature of the right sued on which determines both the
membership of the class and the res judicata effect of the final determination
of the right.'
"The object of the suit is to obtain relief for or against
numerous persons as a group or as an integral entity, and not as separate,
distinct individuals whose rights or liabilities are separate from and
independent of those affecting the others." (Emphasis supplied)
In order that a class suit may prosper, Section 12, Rule 3 of the
Rules of Court requires the concurrence of three (3) essential elements,
namely: (1) that the subject matter of the controversy is one of common or
general interest to many persons; (2) that the parties are so numerous that it
is impracticable to bring them all before the court; and (3) that the action be
maintained by parties who will fairly and adequately represent the class.
Under the first requisite, the person who sues must have an
interest in the controversy, common with those for whom he sues, and there must
be that unity of interest between him and all such other persons which would
entitle them to maintain the action if suit was brought by them jointly.51
As to what constitutes common interest in the subject matter of the
controversy has been explained in Sulo ng Bayan, Inc. vs. Araneta, Inc.,52 thus:
"The interest that will allow parties to join in a bill of
complaint, or that will enable the court to dispense with the presence of all
the parties, when numerous, except a determinate number, is not only an
interest in the question, but one in common in the subject matter of
the suit, x x x a community of interest growing out of the nature and condition
of the right in dispute; for, although there may not be any privity between
the numerous parties, there is a common title out of which the question arises,
and which lies at the foundation of the proceedings x x x [here] the only
matter in common among the plaintiffs, or between them and the defendants, is
an interest in the question involved, which alone cannot lay a foundation for
the joinder of parties. There is scarcely a suit at law, or in equity, which
settles a principle or applies a principle to a given state of facts or in
which a general statute is interpreted, that does not involve a question in
which other parties are interested x x x."
It has further been held that in order to maintain a class action
there must be an ascertainable class as well as a community of interest among
the members of that class in questions of law and fact involved.53 The class must be cognizable and manageable, and must be
defined at the outset of the action. There must be a cognizable class beyond
the general strains which can be conceived to create a class of any
superficially resembling parties, but it is not necessary that the exact number
comprising the class be specified or that the members be identified.54
The first element is present in this case. The class spoken of in
the assailed article that segregates them from the other members of the general
populace is the Muslim people, and their common interest, undoubtedly, is their
religious belief in adoring Allah as the one and only God and that the greatest
sin is to worship persons or things other than Allah. The article is an
outrageous misrepresentation, inflicting stark insult on the religious beliefs
of the Muslims.
Concerning the second element, i.e., numerosity of
parties — one must bear in mind that the purpose. of the rule permitting class
actions is to furnish a mode of obtaining a complete determination of the
rights of the parties in such cases, when the number is so great as to preclude
involvement by actual service. In this class of cases, one is allowed to sue
for all as a matter of convenience in the administration of justice. A class
action is particularly proper in an action wherein the persons are so
multitudinous as vexatiously to prolong and probably altogether prevent a full
hearing.55
Judicial notice may be taken of the fact that Muslims in this
country comprise a lot of the population, thus, it is highly impractical to
make them all parties or bring them all before the court. It is beyond
contradiction that the Muslims affected by the assailed article are
multitudinous, and therefore, the second element is present in the instant
case.
With regards to the third element, that the action be maintained by
one who fairly and adequately represents the class, it is essential that the
relief sought must be beneficial to the class members, the party must represent
the entire class asserted, and be a member of the class he claims to represent,
in addition to having an interest in the controversy common with those for whom
he sues.56 For adequate representation, it is sufficient that there are
persons before the court who have the same interest as the absent persons and
are equally certain to bring forward the entire merits of the question and thus
give such interest effective protection.57 It has also been held that whether the class members are
adequately represented by the named plaintiffs depends on the quality of
representation rather than on the number of representative parties as compared
with the total membership of the class.58 Thus, even one member of a large class can provide the kind
of representation for all that is contemplated by the class suit.59
Respondent IDCP, as a religious organization, being a federation or
umbrella organization of more than seventy (70) Muslim religious organizations
in the Philippines, and its officers who are individual respondents as well,
carry the requisite personality to file a case for damages in behalf of all
Muslims. Unequivocally, they properly represent the Muslims who are similarly
situated and affected by the assailed article.
Respondent officers of IDCP namely, Abdulrahman R.T. Linzag,
Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and Ibrahim B. A. Junio, as well
as their witness, Professor Abdul Rafih Sayedy, not only testified on how the
assailed article emotionally, as well as psychologically, affected each of
them, but also as to how the said article received the condemnation and
contempt of other Muslims, further evidenced by the letter dated September 21,
1992 from thirty-one (31) students of the Islamic University Madinah
Al-Mukarramah, K.S.A.,60 and the seething letter of one Abdil T. Arafat of South
Cotabato province, dated September 29, 1992.61
Moreover, an officer may sue in his own behalf if the defamation
affects him as well as the corporation62 , or where the defamation against the officer has a direct
relation to the corporation's trade or business and it causes injury63 .
Thus, without a shred of doubt, respondents IDCP and the individual
respondents, and all Muslims they represent, have interest so identical that
the motive and inducement to protect and preserve may be assumed to be the same
in each.64 By instituting the suit, the respondents necessarily
represent all Muslims.65
Under Article 2217 of the Civil Code, moral damages which include
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar
injury, although incapable of pecuniary computation, may be recovered for acts
and actions based on Article 26.66
Individual Muslim plaintiffs-respondents, Abdulrahman R.T. Linzag,
Ibrahim F. P. Arcilla, Abdul Rashid De Guzman, and Ibrahim B. A. Junio, as well
as their witness, Professor Abdul Rafih Sayedy, as proper representatives of
the class action testified on the despair, mental anguish, social humiliation
and inferior feeling experienced by the Muslims as a result of the vexatious
article.67 Thus, the award of moral damages is justified.
The award of exemplary damages and attorney's fees is likewise
warranted and the amount is in accordance with Articles 222968 and 220869 of the Civil Code.
However, damages awarded to individual respondents should be
deleted inasmuch as the instant case is considered as a class suit and they
merely acted as officers and members of the principal plaintiff-respondent
IDCP.
One last point. There should be no room for apprehension on future litigations
relating to the assailed article in view of the fact that the instant suit is a
class suit. In a class suit, each member of the class for whose benefit the
action is brought is a party plaintiff; the persons represented are quasi
parties or parties by representation. A suit brought in behalf of others in a
class gives the court jurisdiction of the whole subject matter, and of all the
parties, such that the judgment will be binding on all persons belonging to the
class represented.70
In other words, a judgment in a
class action concludes upon all members of the class, whether formally joined
as parties or not. 71 The class action has
preclusive effect against one who was not named representative of the class, as
long as he was a member of the class which was a party to the judgment.72
Thus, in the case at bar, the Muslims, who are parties represented
by respondent IDCP and its officers, are thereby precluded from instituting
separate or individual suits for damages against MVRS Publications, Inc., et
al., as they are bound by the judgment in this class action, which
amounts to res judicata.
In the light of all the foregoing, I am constrained to dissent from
the majority opinion.
Footnotes
1 Cf. Holmes, J., dissenting in Abrams v. United States,
250 U.S. 630.
2 Petitioners Mars C. Laconsay and Myla C. Aguja failed to file
their Answer and were declared in default.
3 Decision penned by Judge Vetino E. Reyes, RTC-Br. 4, Manila,
Civil Case No. 92-62441, "Islamic Da'wah Council of the Philippines, Inc.
v. MVRS Publications, Inc."
4 Decision penned by Justice Teodoro P. Regino, concurred in by
Justices Quirino D. Abad Santos, Jr., and Conrado M. Vasquez, Jr.
5 Black's Law Dictionary (4th ed. 1951), 505.
6 Words and Phrases, "Defamation," citing Local
15 of Independent Workers of Noble County, Inc. v. International Broth. of
Elec. Workers, D.C., Ind., 273 F. Stipp. 313, 320.
7 Id., citing Whitby v. Associates Discount Corp.,
207 N.E. 2d 482, 484, 591 Ill. App. 2d 337.
8 Prosser and Keeton on Torts, (5th ed. 1984).
9 50 Am. Jur. 2d, "Libel and Slander," 705 (1995).
10 Ibid.
11 50 Am Jur 2d, "Libel and Slander," 674 (1995).
12 Art. III, Sec. 4, 1987 Constitution.
13 G.R. No. 63559, 30 May 1986, 142 SCRA 171, 176-177.
14 567 F. 2d 1163, 1164 (1977).
15 P. Wittenberg, "Dangerous Words: A Guide to the Law of
Libel," 226-227, citing People v. Edmundson, 168 N.Y. Misc. 141.
16 Id., 227, citing Rex v. Gathercole, 2
Lewin 237.
17 Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v.
Fanning, Civ. No. C 80-1869 RPA, 25 September 1980, 506 F. Supp. 186.
18 Id., 187.
19 Ibid.
20 See Note 8, 767–768.
21 50 Am Jur 2d, 675 (1995).
22 315 U.S. 568 (1942).
23 343 U.S. 250 (1952).
24 Not a group, unless the attack is directed against
identifiable individuals within the group.
25 Rollo, 55.
26 See SECOND RESTATEMENT OF THE LAW, TORTS 2D § 46.
§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally x x
xcauses severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such
bodily harmx x x.
27 See 38 Am. Jur. 2d § 15 citing cases. See also D. Givelber,
The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional
Infliction of Emotional Distress by Outrageous Conduct, 82 Col. L. Rev. 42
(1982).
28 Ibid.
29 Ibid.
30 Ibid.
31 Ibid.
32 See 38 Am. Jur 2d § 7 citing cases.
33 485 U.S. 46 (1988). Mr. Justice Anthony Kennedy did not take
part.
34 See Note 8, § 12, p. 59 citing Magruder, Mental and Emotional
Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1035. See also SECOND
RESTATEMENT OF THE LAW, TORTS 2D § 46.
35 49 Harv. L. Rev. 1053. See also SECOND RESTATEMENT OF THE
LAW, TORTS 2D § 46 citing Magruder.
36 S. Olsen, White v. Monsanto: Louisiana Adopts the
Restatement Approach to Intentional Infliction of Emotional Distress, 66 Tulane
L. Rev. 2096 (1992) citing Magruder.
37 Ibid. citing 38 Am. Jur. 2D §§ 8–12.
38 Smolla, Free Speech in an Open Society, 1993 Ed., at pp.
160–162.
39 403 U.S. 15 (1971).
40 Id. at 25–26.
41 See Note 38.
42 395 U.S. 444 (1969).
43 403 U.S. 15 (1971).
44 See Harvard Law Review, Vol. 101:682 1988, at p. 684-687.
45 Ibid. at 447.
46 See Note 38 at p. 165.
47 59 Am Jur 2d, 456 (1977).
48 Citing Industrial Generating Co. v. Jenkins 410
SW 2d 658; Los Angeles County Winans, 109 P 640, Weberpals
v. Jenny, 133 NE 62.
49 Art. 2217, New Civil Code.
50 Simex International, Inc. v. Court of Appeals, G.R.
No. 88013, 19 March 1990, 183 SCRA 360.
51 See Art. 2234, New Civil Code.
52 See Note 38 at p. 46.
53 Id., citing Gertz v. Robert Welch, Inc.,
418 U.S. 323, 339–340 (1974);
VITUG, J., concurring:
1 See Worcester vs. Ocampo, 22 Phil. 42.
2 Black's Law Dictionary, 6th Ed., p. 1565.
3 Prosser and Keeton on Torts, 5th Ed., p. 55.
4 Restatement (Second) of Torts § 46 (1965)
5 Prosser and Keeton, supra, p. 59.
6 Slocum vs. Food Fair Stores of Florida, Inc., Fla.
1958, 100 So. 2d 396; Wallace vs. Shoreham Hotel Corp., Mun.
App. D.C. 1946, 49 A2d 81; Stavnezar vs. Sage-Allen & Co.,
1959, 146 Conn. 460, 152 A. 2d. 312.
7 Taft vs. Taft, 1867, 40 Vt. 229; Stratton vs.
Posse Normal School of Gymnastics, 1928 163 N. E. 905; State National
Bank of Iowa Park vs. Rogers, Tex. Civ. App. 1935, S. W. 2d 825.
8 Wallace vs. Shoreham Hotel Corp., supra.
9 53 C.J.S., Libel and Slander § 2.
10 Black's Law Dictionary, 6th Ed., p. 417.
11 Prosser and Keeton, supra, p. 771.
12 See Article 355, Revised Penal Code.
13 Article 353, Revised Penal Code.
14 Corpus vs. Cuaderno, Sr., 16 SCRA 807; Kunkle
vs. Cablenews American, et al., 42 Phil. 757; Borjal vs. Court of
Appeals, 301 SCRA 1.
15 50 Am Jur 2d (1995), p. 674.
16 Id.
17 Sec. 4, Art. III, 1987 Constitution.
18 Restatement (Second) of Torts §564A comment b (1977).
19 50 Am Jur 2d, (1995), p. 675.
20 Neil J. Rosini, The Practical Guide to Libel, supra,
citing Brady v. Ottaway Newspapers, Inc., 84 A.D. 2d 229.
21 50 Am Jur 2d, (1995), p. 675.
22 189 F. 86, as cited by Ella Cooper Thomas in The Law of Libel
and Slander (New York, 1973), p. 21.
23 131 N.Y.S. 680, as cited in The Law of Libel and
Slander, supra.
24 81 N.E. 459, as cited in The Law of Libel and Slander, supra.
25 142 SCRA 171
26 Uy Tioco vs. Yang Shu Wen, 32 Phil. 624.
27 ABS-CBN Broadcasting Corporation vs. Court of Appeals,
301 SCRA 572.
28 50 Am Jur 2d (1995), p. 678.
CARPIO, J., dissenting:
1 Brief for Plaintiffs-Appellants, pp. 4–5.
2 Pages 16–17, Petition.
3 Article 30 of the Civil Code provides as follows: "When
a separate civil action is brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of."
4 Should be discreditable.
5 International Corporate Bank v. Gueco, 351 SCRA 516
(2001); French Oil Mill Machinery Co., Inc. v. Court of Appeals,
295 SCRA 462 (1998); Lagandaon v. Court of Appeals, 290 SCRA 330
(1998); Sandoval v. Court of Appeals, 260 SCRA 283 (1996).
6 Report of the Code Commission, pp. 32–33.
7 In People v. Silvela, 103 Phil. 773, the Court,
citing American jurisprudence, stated: "If the defamatory matter is not
seen or heard by anyone except the defamer and the defamed, damages to
character reputation can not result since a man's reputation is the estimate in
which others hold him, and not what he himself thinks." Black's Law
Dictionary (6th Ed.) defines "reputation" thus: "Estimation in
which one is held; the character imputed to a person by those acquainted with him.
That by which we are known and is the total sum of how we are seen by othersx x
x. General opinion, good or bad, held of a person by those of the community in
which he resides."
8 M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W. 2d 681
(1980); Section 46, Restatement (Second) of Torts.
9 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710
(1964).
10 485 U.S. 46 (1988).
11 Section 11, 1987 Constitution.
12 Section 18 (7), Article XIII, 1987 Constitution.
13 Entered into force on March 23, 1976.
14 Simon, Jr. v. Commission on Human Rights, 229 SCRA 117
(1994).
15 CCPR General Comment 11, 19th Session (1983), Office of the
High Commissioner for Human Rights.
16 La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 373
(1984); Ram Singh v. Insular Collector of Customs, 38 Phil.
862 (1918).
17 Vienna Convention on the Law of Treaties, Art. 26.
18 3 S.C.R. 697 (1990).
19 315 U.S. 568, 62 S.Ct. 766 (1942).
20 403 U.S. 15 (1971).
21 Supra, note 10.
22 New York Times v. Sullivan, 376 U.S. 254 (1964). Prior
to New York Times, the prevailing view in the U.S. was that lewd, obscene and
profane speech was not constitutionally protected, whether directed at private
individuals or public officials. New York Times imposed, with respect to public
officials, a qualified constitutional privilege. The U.S. Supreme Court stated
that "the constitutional protections for speech and press require a
federal rule that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with 'actual malice,' that is, with knowledge that it was
false or made with reckless disregard of whether it was false or not."
23 Record of the Constitutional Commission, Vol. 1, pp. 491–492.
24 Ibid.
25 Re: Request of the Heirs of the Passengers of Doña Paz, 159
SCRA 623 (1988).
26 343 U.S. 250 (1952).
27 395 U.S. 444 (1969).
28 274 U.S. 357.
29 Chaplinsky v. New Hampshire, supra, note
18; Hustler Magazine v. Falwell, supra, note 10.
30 Supra, note 18.
31 Hate Speech in the Constitutional Law of the United States,
William B. Fisch, American Journal of Comparative Law, Fall 2002.
32 "American constitutional law generally protects hate
speech of various kinds, including religious and racial. In this area, the law
of the United States is precisely contrary to international human rights norms.
Article 20(2) of the International Covenant on Civil and Political Rights
states, 'Any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by
law."' David M. Smolin, Exporting the First Amendment? Evangelism,
Proselytism, and the International Religious Freedom Act, 31 Cumberland Law
Review, 2000–2001.
33 ABS-CBN Broadcasting Corp. v. Commission on Elections,
323 SCRA 811 (2000).
34 Decision of Judge Vetino E. Reyes dated June 31, 1995, pp.
4–6.
35 Article 2217, Civil Code.
36 Antonio T. Carpio, Intentional Torts in Philippine Law,
Philippine Law Journal, Vol. 47, No. 5 (December 1972).
AUSTRIA-MARTINEZ, J., dissenting:
1 Quran, Chapter 16:115. See also Chapter 7:145.
2 Michael J. Diamond and Peter G. Gowing, "Islam and
Muslim: Some Basic Information". 1981 New Day Publishing, Quezon City, pp.
29–30. (Michael J. Diamond is Vicar General of the Prelature of Marawi, Marawi
City, Lanao del Sur; Peter G. Gowing was a Doctor of Theology in Ecumenics and
Church History).
3 R. A. Epstein, C. O. Gregory, and H. Kalven, Jr., Cases and
Materials on Torts, 1984 Ed., p. 1271 citing Restatement (Second) of the Law of
Torts, Section 652E.
4 Luis B. Reyes, "The Revised Penal Code", Book II,
Fourteenth Edition, Revised 1998, p. 921.
5 Vasquez vs. Court of Appeals, 314 SCRA 460, 471
(1999).
6 53 C.J.S., Libel and Slander, § 13.
7 Ibid.
8 Ibid.
9 53 C.J.S., Libel and Slander, § 13. See also 50 Am. Jur. 2d,
Libel and Slander, § 82.
10 Ibid.
11 Ibid.
12 25 Words and Phrases, Libel, p. 119 citing Cooper vs.
Greeley, N.Y., 1 Denio, 347, 359.
13 Article 353, Revised Penal Code.
14 R. L. McEwen and P. S. C. Lewis, Gatley on Libel and Slander,
§ 89 (1967), citing Russell L. J. in Cassidy vs. Daily Mirror, 2
K.B. 354 (1929); Newstead vs. London Express, 1 K.B. 377, 396
(C.A.) (1940). See also 50 Am. Jur., Libel and Slander, § 25.
15 People vs. Encarnacion (CA), 48 Official Gazette 1817,
1820 (1952), citing Lord Bramwell in Henty's Case, 52 L.J.Q.B. 232 (1882).
16 Ibid.
17 People vs. Encarnacion (CA), supra citing
53 C.J.S. 48–50.
18 M. H. Newell, The Law on Slander and Libel in Civil and
Criminal Cases, § 6, (1924), citing Curtis vs. Mussey, 6 Gray (Mass.) 261.
19 R. L. McEwen and P.S.C. Lewis, Gatley on Libel and Slander, §
8, (1967).
20 Ibid., citing Nevill vs. Fine Arts Co., 2
Q.B. 163 (1895).
21 Ibid., citing Blake vs. Stevens 11 L.T. 543 (1864); Fox vs.
Broderick, 14 Ir. C.L.R. 453 (1864); Shepheard vs. Whitaker, LR.L. 10 C.P. 502
(1875); Tompson vs. Dashwood, 11 Q.B.D. 43 (1883); Morrison vs. Ritchie, 4 F.
645 (Ct. of Sess.) (1902); Van Wiginton vs. Pulitzer, 218 Fed. R. 795 (1914).
22 Ibid., citing Cook vs. Ward, 6 Bing, 409
(1830); R. vs. Hicklin, L.R. 3 Q.B. 360.(1868); Bowen
vs. Hall, 6 Q.B.D. 343 (1881); Jones vs. Hulton, 2 K.B. 279
(1909).
23 Vicario vs. Court of Appeals, 308 SCRA 25, 34 (1999).
24 50 Am. Jur. 3d, Libel and Slander § 493.
25 Borjal vs. Court of Appeals, 301 SCRA 1, 18 (1999),
citing Kunkle vs. Cablenews-American, 42 Phil. 757 (1922), Corpus
vs. Cuaderno, Sr., 16 SCRA 807 (1966), and People vs. Monton,
6 SCRA 801 (1962).
26 142 SCRA 171 (1986).
27 Jimenez vs. Patricia, Inc., 340 SCRA 525 (2000); Philippine
Basketball Association vs. Court of Appeals, 337 SCRA 358 (2000); Victorias
Milling Co., Inc. vs. Court of Appeals, 333 SCRA 663 (2000); Roman
Catholic Archbishop of Manila vs. Court of Appeals, 269 SCRA 145, 153
(1997).
28 Catholic Bishop of Balanga vs. Court of Appeals, 264
SCRA 181, 191–192 (1996). See also Sy vs. Court of Appeals, 330
SCRA 550, 555–556 (2000); Logronio vs. Taleseo, 312 SCRA 52, 61–62
(1999); Dando vs. Frazer, 227 SCRA 126, 133 (1993); Espina
vs. Court of Appeals, 215 SCRA 484, 488 (1992); Carillo vs. De Paz,
18 SCRA 467, 471 (1966); Hernandez vs. Andal, 78 Phil. 196, 209–210
(1947).
29 T. B. Aquino, Torts and Damages, 2001 Ed., p.470, citing
Watkins, p. 145.
30 Vasquez vs. Court of Appeals, 314 SCRA 460, 471
(1999); Alonzo vs. Court of Appeals, 241 SCRA 51, 59 (1995); Daez
vs. Vasquez, 191 SCRA 61, 67 (1990).
31 74 Am Jur 2d Torts § 2, citing Fisher vs. Toler,
194 Kan 701, 401 P2d 1012.
32 74 Am Jur 2d Torts § 2, citing Tisdale vs. Eubanks,
180 NC 153, 104 SE 339, 11 ALR 374; Smith vs. Buck, 119 Ohio St
101, 162 NE 383, 61 ALR 1343.
33 74 Am Jur 2d Torts § 4; 1 Am Jur 2d, Actions § 49.
34 74 Am Jur 2d Torts § 4, citing Miller vs. Monsen,
228 Minn 400, 37 NW2d 543, Harris vs. Nashville Trust Co., 128 Tenn
573, 162 SW 584.
35 74 Am Jur 2d Torts § 4, citing Seidel vs. Greenberg,
108 NJ Super 248, 260 A2d 863, 40 ALR 3d 987.
36 Report of the Code Commission, p. 39.
37 Report of the Code Commission, pp. 33–34.
38 Ibid.
39 Tolentino, supra at 89.
40 Concepcion vs. Court of Appeals, 324 SCRA 85, 94
(2000) citing E. P. Caguioa, Comments and Cases on Civil Law, 1959 Ed., Vol. I,
p. 41.
41 Ibid.
42 74 Am Jur 2d Torts § 32. 38 Am Jur 2d Fright, Shock and
Mental Disturbance.
43 Report of the Code Commission, p. 33.
44 TSN, May 10, 1993, pp. 8–9.
45 Michael J. Diamond and Peter G. Gowing, supra, Note 24.
46 TSN, Hearing of November 18, 1990, pp. 8–9 and 19.
47 See next page.
48 In Re: Emil P. Jurado, 243 SCRA 299, 327 (1995), citing Ayer
Productions Pty. Ltd. vs. Capulong, 160 SCRA 861 (1988).
49 Ibid., pp. 6, 11–12.
50 159 SCRA 623, 627 (1988), citing 59 Am. Jur. 2d Parties §
415, Moore, Federal Practice, 2d., Vol. 3B, pp. 23–257, 23–258.
51 Certia vs. Notre Dame du Lac University, 141 N.E. 318.
52 72 SCRA 347, 357 (1976) citing Scott vs. Donald,
165 U.S. 107, 41 Law. Ed. 447, 52 S. Ct. 217.
53 67A C.J.S. Parties, § 24.
54 Ibid.
55 Ibid. Also 59 Am. Jur. 2d Parties §§ 46, 55 and 62;
67A C.J.S. Parties, § 698.
56 Ibid.
57 59 Am. Jur. 2d Parties § 63.
58 Ibid.
59 Ibid.
60 Exhibit "B".
61 Exhibit "C".
62 53 C.J.S., Libel and Slander, § 146 citing Stidham
vs. State Bank of Ebson, 270 p. 594,126 Kan 600 (1928), Rusciano
& Son Corporation vs. Mihalyfi, 1 N.Y.S. 2d 787, 165 Misc. 932; R.G.
Dun & Co. vs. Shepp, 91 S.W. 2d 330, 127 Tex. 80.
63 Brayton vs. Cleveland Special Police Co., 63 Ohio St
83, 57 N.E. 1085 (1900).
64 59 Am. Jur. 2d Parties § 62, p. 473 citing Maxwell
vs. Brougher, 222 P2d 910, 99 C.A. 2d 824.
65 59 Am. Jur. 2d Parties § 62, p. 473 citing Nunelly
vs. First Federal Building & Loan Association of Agden, 154 P.2d 620,
107 Utah 347.
66 Article 2219 Moral damages may be recovered in the following
and analogous cases:
xxx xxx
xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29,
30, 32, 34, and 35.
xxx xxx
xxx
67 TSNs, April 26, 1993, pp. 23, 25; July 30, 1993, pp. 13–14,
16–17; November 12, 1993; pp. 7, 9, 20–21; April 18, 1994, pp. 7, 10–12.
68 Article 2229 Exemplary or corrective damages are imposed, by
way of example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
69 Article 2208 In the absence of stipulation, attorney's fees
and expenses of litigation, other than judicial costs, cannot be recovered,
except:
(1) When exemplary damages are awarded;
xxx xxx
xxx
(11) In any other case where the court deems it just and equitable
that attorney's fees and expenses of litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must
be reasonable.
70 67A C.J.S. Parties § 30.
71 59 Am. Jur. 2d Parties § 90, citing Williams v. State (La),
350 So. 2d 131; Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226,
271 N.W. 2d 879; Drainage Dist. Of Lincoln County v. Kirkpatrick-Pettis
Co., 140 Neb 530, 300 NW 582.
72 46 Am. Jur. 2d Judgments § 108.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
SECOND DIVISION
G.R. No. 124058
December 10, 2003
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JESUS G. RETUBADO alias
"JESSIE," appellant.
D E C I S I O N
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court, Toledo City, Branch 29, in Criminal
Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder,
sentencing him to reclusion perpetua, and directing him to indemnify the heirs
of the victim Emmanuel Cañon the sum of P50,000.00.
The appellant was indicted for murder in an Information, the
accusatory portion of which reads:
That on the 5th day of November, 1993 at 9:30 o’clock in the
evening, more or less, at Barangay I Poblacion, Municipality of Tuburan,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent to kill, by means of
treachery, evident premeditation and taking advantage of superior strength, did
then and there willfully, unlawfully and feloniously attack, assault and shoot
Emmanuel Cañon with the use of unlicensed revolver of unknown caliber, thereby
hitting the latter on his forehead, resulting to the instantaneous death of the
said victim.
CONTRARY TO LAW.2
Shortly before November 5, 1993, someone played a joke on Edwin
Retubado, the appellant’s younger brother who was mentally ill. Someone
inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He
brought the cigarette home and placed it on the dining table as he was having
dinner with his father. Momentarily, the firecracker exploded. The suspect was
Emmanuel Cañon, Jr., The Cañons and the appellant were neighbors. The matter
was brought to the attention of the barangay captain who conducted an
investigation. It turned out that Emmanuel Cañon, Jr. was not the culprit. The
barangay captain considered the matter closed. The appellant, however, was bent
on confronting Emmanuel Cañon, Jr.
On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel
Cañon, Sr., a pedicab driver called it a day and decided to go home after a
day’s work. He drove his pedicab and stopped at the junction of Rizal and
Gallardo Streets, at the poblacion of Tuburan. The appellant, who was
conversing with Marcial Luciño saw him. "Noy, why is [it] your son did
something to my brother?" Emmanuel ignored the appellant. The appellant
was incensed and ran after Emmanuel. He overtook Emmanuel, grabbed and pushed
the pedicab which nearly fell into a canal. Emmanuel again ignored the
appellant and pedaled on until he reached his house. His wife, Norberta Cañon
was in the balcony of their house, above the porch waiting for him to arrive.
Emmanuel, Jr., meanwhile, was already asleep. Undeterred, the appellant
continued following Emmanuel.
Shortly after Emmanuel had entered his house, the appellant arrived
and tarried at the porch. Emmanuel suddenly opened the door and demanded to
know why he was being followed. The appellant told Emmanuel that he just wanted
to talk to Emmanuel, Jr., but Emmanuel told the appellant that his son was
already asleep. Norberta went down from the balcony and placed her hand on her
husband’s shoulder to pacify him.
The appellant forthwith pulled out a handgun from under his T-shirt
and shot Emmanuel on the forehead. The latter fell to the floor as the
appellant walked away from the scene. Norberta shouted for help. The neighbors,
her daughter, and her son-in-law arrived. They brought Emmanuel to the Tuburan
District Hospital, but the victim died shortly thereafter. Dr. Ivar G.
Arellano, the Municipal Health Officer, performed an autopsy on the cadaver of
Emmanuel and prepared a report thereon with the following findings:
Examination in Detail:
On detailed examination, a gunshot wound was found at the left side
of the forehead, measuring 1 cm. in diameter. At the skin surrounding this
wound was found powder burns which measured 3 cms. in diameter as the skin had
been blackened and burned by powder of the bullet. The underlying frontal bone
was fractured and depressed. The underlying meninges of the brain as well as
the frontal area of the brain was traumatized and injured. Blood and
cerebrospinal fluid were leaking from this wound. The edges of this bullet
wound was inverted thus this was the gunshot entry wound. The wound was found
to be circular in shape. The exit wound was found at the left parietal bone
measuring 1.2 cm. in size or diameter for this wound communicated with the
entry wound of the left side of the forehead. The connection from the wound of
entry to the exit wound measured 8 cms. The parietal bone was fractured and was
depressed and the parietal part of the brain and meninges was traumatized.
Blood and cerebrospinal fluid as well as brain tissues leaked out from this
wound.
Possible cause of death:
1. Gunshot wound at the head (left side) with injury to brain and
meninges
2. Hypovolemic shock secondary to loss of blood (Severe loss of
blood)
(Sgd.) Ivar G. Arellano
MUN. Health Officer3
Dr. Charity Patalinghug and the victim’s daughter Loreta C. Claro
signed Emmanuel’s Certificate of Death.4 The appellant surrendered to the police authorities but failed to
surrender the firearm he used to kill the victim. Forensic Officer Myrna P.
Areola of the PNP Regional Office subjected the appellant to paraffin tests.
The Chemical Analysis of the paraffin casts gave the following results:
FINDINGS:
...
1. POSITIVE for the presence of gunpowder residue on his left hand
cast.
2. NEGATIVE for the presence of gunpowder residue on his right hand
cast.5
Norberta also testified on the expenses incurred by her family due
to her husband’s death. No documentary evidence was, however, offered to
support the same. She declared that she felt sad and lonely as a result of her
husband's death.
The Case for the Appellant
The appellant admitted shooting the victim but claimed that he was
merely performing a lawful act with due care; hence, cannot be held criminally
liable for the victim’s death. He testified that when he insisted that Emmanuel
wake up his son, Emmanuel went to his room and emerged therefrom holding a
handgun with his right hand. Emmanuel’s trigger finger was outside the trigger
guard, and he held the firearm with the muzzle facing downward. Fearing that he
would be shot, the appellant took hold of Emmanuel’s right hand with his left,
and pulled the gun towards Emmanuel’s stomach. The appellant grabbed Emmanuel’s
free hand with his right hand, and the old man almost fell on his knees to the
ground. Emmanuel still resisted. The appellant pulled the gun to the level of
Emmanuel’s forehead, and the gun suddenly went off. The bullet hit Emmanuel’s forehead.
Norberta fled from the house. For his part, the appellant rushed to his house
to change clothes. He placed the gun on the dining table before entering his
bedroom. When he went back to the dining room to get the gun, his younger
sister, Enrica told him that their brother Edwin had taken the gun. He found
Edwin outside their house near the church, and the latter told the appellant
that he threw the gun into the sea. When the appellant asked his brother to
show him where he threw the gun, Edwin refused to do so.
Marcial Luciño corroborated the appellant’s testimony. He testified
that he was talking with the appellant at around 9:00 p.m. at the junction of
Rizal and Gallardo streets when the victim Emmanuel passed by in his pedicab.
When the appellant called the victim, the latter ignored the call, prompting
the appellant to chase the victim, and eventually push the pedicab into a
canal.
The appellant’s father, Iñigo Retubado, testified that on the
evening of November 5, 1993, he was in their house with Edwin, his son who was
mentally-ill. It was already late when the appellant arrived. The appellant was
disheveled, and laid down the gun he was carrying on the table. The appellant
told his father that he would surrender to the police because he had shot somebody.6 The appellant thereafter went to his room to change clothes while
Iñigo went to the comfort room to answer the call of nature. When he was done,
he saw the appellant frantically looking for the gun. As Edwin was also nowhere
to be found, Iñigo concluded that Edwin might have taken the gun with him. He
also testified on Edwin’s mental imbalance and on the latter’s confinement at
the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in
Cebu City sometime in 1991.7
On November 6, 1993, the appellant surrendered to the police
authorities. Although he was required by the municipal trial court to file his
counter-affidavit, the appellant refused to do so.
After due proceedings, the trial court rendered judgment in
Criminal Case No. TCS-2153, convicting the appellant of murder, and sentencing
him to reclusion perpetua. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, this Court finds accused
GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and
sentences the accused to the penalty of Reclusion Perpetua and to indemnify the
heirs of the deceased the sum of P50,000.00.
However, accused is given full credit of his preventive
imprisonment.
SO ORDERED.8
On appeal, the appellant assails the decision of the trial court
contending that:
I
First Assignment of Error
THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS
CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE
ACCUSED WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT
ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.
II
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND
MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY
REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.
III
Third Assignment of Error
THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE
WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE
ACCUSED OF MURDER.
IV
Fourth Assignment of Error
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS
EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.9
The appellant asserts that he was merely performing a lawful act of
defending himself when he grabbed the victim’s hand which held the gun. The gun
accidentally fired and the bullet hit the victim’s forehead. The accident was
not the appellant’s fault. The appellant asserts that when he wrestled with the
victim for the possession of the gun, he was merely defending himself. He
contends that he had no intention of killing the victim, as he merely wanted to
talk to his son. If he had wanted to kill the victim, he could have easily done
so when he met the latter for the first time that fateful night of November 5,
1993. Moreover, the appellant submits, he did not commit any felony; hence,
under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally
liable for the death of the victim.10 In the alternative, the appellant asserts that he should be
convicted only of the crime of homicide under Article 249 of the Revised Penal
Code, since the qualifying circumstance of treachery is wanting. He and the
victim had a heated exchange of words before they grappled for the possession
of the gun. Such heated discussion had already forewarned the victim and placed
him on guard; thus, treachery cannot be legally considered.
The contention of the appellant has no merit. Article 11, paragraph
4 of the Revised Penal Code reads:
ART. 11. Justifying circumstances. –
...
4) Any person who, in order to avoid an evil or injury, does an act
which causes damage to another provided that the following requisites are
present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid
it;
Third. That there be no other practical and less harmful means of
preventing it.
The provision was taken from Article 8, paragraph 7 of the Spanish
Penal Code, which reads:
ARTICULO 8.
7. El que para evitar un mal ejecuta un hecho que produzca dañ en
la propiedad ajena, siempre que concurran las circumstancias siguientes:
Primera. Realidad del mal que se trata de evitar.
Segunda. Quesea mayor que el causado para evitarlo.
Tercera. Que no haya otro medio practicable y menos
perjudicial para impedirlo.
Article 11, paragraph 4 of the Revised Penal Code is not an
accurate translation of the Spanish Penal Code. The phrase "an
injury" does not appear in the first paragraph in the Spanish Penal Code.
Neither does the word "injury" appear in the second subparagraph of
the Spanish Penal Code.
The justification is what is referred to in the Spanish Penal Code
as el estado de necessidad:
Es una situacion de peligro, actual o immediato para bienes,
juridicamente protegides que solo puede ser evitada mediante, la lesion de
bienes, tambien juridicamento protegidos, pertenecientes a otra personas.11
The phrase "state of necessity" is of German origin.
Countries which have embraced the classical theory of criminal law, like Italy,
do not use the phrase. The justification refers to a situation of grave peril
(un mal), actual or imminent (actual o imminente). The word propiedad covers
diverse juridical rights (bienes juridicos) such as right to life, honor, the
integrity of one’s body, and property (la vida, la integridad corporal, el
pudor, el honor, bienes patrimoniales) belonging to another.12
It is indispensable that the state of necessity must not be brought
about by the intentional provocation of the party invoking the same.13
A number of legal scholars in Europe are of the view that the act
of the accused in a state of necessity is justifying circumstance; hence,
lawful. Under Article 12, paragraph 4 of the Revised Penal Code, a "state
of necessity" is a justifying circumstance. The accused does not commit a
crime in legal contemplation; hence, is not criminally and civilly liable.
Civil liability is borne by the person/persons benefited by the act of the
accused. Crimes cannot exist unless the will concurs with the act, and when,
says Blackstone, "a man intending to do a lawful act, does that which is
unlawful, the deed and the will act separately" and there is no
conjunction between them which is necessary to constitute a crime.14 Others are of the view that such act is a cause for exclusion from
being meted a penalty; still others view such act as a case of excluding the
accused from culpability.
According to Groizard, rights may be prejudiced by three general
classes of acts, namely, (a) malicious and intentional acts; (b) negligent or
reckless acts; (c) acts which are neither malicious, imprudent nor negligent
but nevertheless cause damages.
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos
por tres clases de hechos.1âwphi1 Por actos maliciosos, intencionales, encaminados directamente
a causarnos daño; por actos que, sin llevar ese malicioso fin y por falta de
prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado,
y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa,
ni negligencia sin embargo produzcan menocabo en nuestros bienes.15
The defense of a state of necessity is a justifying circumstance
under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative
defense that must be proved by the accused with clear and convincing evidence.
By admitting causing the injuries and killing the victim, the accused must rely
on the strength of his own evidence and not on the weakness of the evidence of
the prosecution because if such evidence is weak but the accused fails to prove
his defense, the evidence of the prosecution can no longer be disbelieved.
Whether the accused acted under a state of necessity is a question of fact,
which is addressed to the sound discretion of the trial court. The legal
aphorism is that the findings of facts by the trial court, its calibration of
the testimony of the witnesses of the parties and of the probative weight
thereof as well as its conclusions based on its own findings are accorded by
the appellate court high respect, if not conclusive effect, unless the trial
court ignored, misconstrued or misapplied cogent facts and circumstances of
substance which, if considered, will change the outcome of the case. We have
meticulously reviewed the records and find no basis to deviate from the
findings of the trial court that the appellant was the provocateur, the
unlawful aggressor and the author of a deliberate and malicious act of shooting
the victim at close range on the forehead.
First: When Norberta heard her husband and the appellant arguing
with each other in the porch of their house, she went down from the balcony
towards her husband and placed her hand on the latter’s shoulders. She was
shocked when the appellant pulled out his handgun and deliberately shot the
victim on the forehead, thus:
Q Now, you said that when your husband was about to go out again in
order to see his trisicad and as he opened the door he saw
Jesus Retubado near the door. What happened after that?
A He asked Jesus Retubado why Jesus Retubado chased him when he was
driving his trisicad.
Q Now, as your husband was asking this question to the accused
Jesus Retubado what was the distance to your husband at the time?
A Just very near to him.
Q And you to the accused at that very moment what was more or less
your distance?
A About an armslength.
Q When your husband asked Jesus Retubado why the latter chased him
while your husband was driving his trisicad what was the
answer of Jesus Retubado, if any?
A My husband asked the accused Jesus Retubado what is his grudge to
him and Jesus Retubado answered that it is not you who has a grudge to me but
it is your son.
Q When Jesus Retubado uttered that statement what transpired after
that?
A He immediately pointed his firearm that he was bringing (sic) to
my husband Emmanuel Cañon.
Q By the way considering that you were just near to both your
husband and the accused where did that firearm that you said was pointed by the
accused to your husband come (sic) from?
A While the accused was standing in front of our door his hands
were placed inside his T-shirt covered by his T-shirt.
Atty. Pepito:
We move to strike out the answer. It is not responsive, Your Honor.
The question was, where did it come from?
COURT:
Let the answer stay in the record but let the witness answer again.
A From the hands of accused Jessie.
Fiscal Pansoy:
Q Now, just a while ago you were making a motion using your hand
placed inside your T-shirt. Now, when you saw the firearm for the first time
where did you saw (sic) the firearm for the first time where did the firearm
come from as you saw it from the hands of the accused?
Atty. Pepito:
Already answered. It came from the hands of the accused.
Fiscal Pansoy:
I will reform.
Q Before you saw the firearm in the hands of the accused where did
the firearm come from?
Atty. Pepito:
She is incompetent. We object.
COURT:
Reform the question.
Fiscal Pansoy:
Q Now, Mrs. Witness, before this question was asked to you as to
where the firearm came from you were making a motion by placing your hands
inside your shirt when you were only asked as to where the firearm came from?
A That was what the position of the accused when he was standing in
front of our door and I do not know what was inside his T-shirt. I only know
that he was carrying a firearm when it fired.
Q Now, when the accused pointed the firearm to your husband and
fired the same more or less what was the distance between the accused and your
husband at the very precise time when the firing was made?
A It was just very near because his hand did not bend. (Witness
demonstrating by pointing to her forehead).
Q Now, more or less, describe to the Court the approximate distance
between the firearm that was pointed to your husband and the forehead of your
husband at the time when the firing was done?
A It touched the forehead of my husband.
Q That was the very time that you heard the gunburst?
A Yes.
Q When the accused fired the firearm that was carried by him, what
happened to your husband?
A My husband fell down backward to the ground inside the house.
Q By the way, what was the flooring of your house where your
husband fell backward to the ground?
A Cemented.
Q By the way considering that you were just very near to where the
incident occurred can you describe the length of the firearm that was used by
the accused in firing your husband?
A It was a short firearm about 6 inches.
Q Now, as your husband fell down to the floor where did the accused
proceed and what did the accused do?
A He was just casually walking away as if nothing had happened.
Q Now, what did you do to your husband, if any, after he fell down
to the floor?
A I have done nothing because I was somewhat shocked. I could not
move because I was shocked.16
Second: After shooting the victim, the appellant fled from the
situs criminis. He surrendered to the police authorities only on November 6,
1993, but failed to surrender the gun he used to kill the victim. The
appellant’s claim that he placed the gun on the dining table before entering
his bedroom to change his clothes is incredible. There is no evidence that the
appellant informed the police authorities that he killed the victim in a state
of necessity and that his brother, Edwin, threw the gun into the sea. The
appellant never presented the police officer to whom he confessed that he
killed the victim in a state of necessity.
Third: The appellant had the motive to shoot and kill the victim.1avvphi1 The victim ignored the appellant as the latter talked to him
at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The
appellant was incensed at the effrontery of the victim, a mere pedicab driver.
The appellant followed the victim to his house where the appellant again
confronted him. The appellant insisted on talking with the victim’s son but the
victim refused to wake up the latter. The appellant, exasperated at the
victim’s intransigence, pulled out a gun from under his shirt and shot the
victim on the forehead. It was impossible for the victim to survive. With the
appellant’s admission that he shot the victim, the matter on whether he used
his right or left hand to shoot the latter is inconsequential.
We agree with the contention of the Solicitor General that there is
no treachery in the present case to qualify the crime to murder. To appreciate
treachery, two (2) conditions must be present, namely, (a) the employment of
the means of execution that give the person attacked no opportunity to defend
himself or to retaliate, and (b) the means of execution were deliberately or
consciously adopted.17 The prosecution failed to adduce an iota of evidence to support the
confluence of the abovementioned conditions. Thus, the appellant is guilty only
of homicide under Article 249 of the Revised Penal Code. Although the
Information alleges that the appellant used an unlicensed firearm to shoot the
victim, the prosecution failed to prove that the appellant had no license to
possess the same. Hence, the aggravating circumstance of the use of an
unlicensed firearm to commit homicide should not be appreciated against the
appellant.
The appellant is entitled to the mitigating circumstance of
voluntary surrender. He turned himself in to the police authorities prior to
the issuance of any warrant for his arrest.
The trial court awarded ₱50,000.00 as civil indemnity18 to the heirs of the deceased. In addition, the heirs are entitled
to moral damages in the amount of ₱50,000.0019 and the temperate damages in the amount of ₱25,000.00 since no
sufficient proof of actual damages was offered.20
WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The
appellant Jesus G. Retubado alias "Jessie" is found GUILTY beyond
reasonable doubt of homicide defined in and penalized by Article 249 of the
Revised Penal Code and is hereby sentenced to suffer an indeterminate sentence
of ten (10) years of prision mayor, in its medium period, as minimum, to
fifteen (15) years of reclusion temporal, in its medium period, as maximum, and
to pay the heirs of the victim, Emmanuel Cañon, ₱50,000.00 as civil indemnity;
₱50,000.00 as moral damages; and P25,000.00 as temperate damages.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ.,
concur.
Footnotes
1 Penned by Executive Judge Gualberto P. Delgado.
2 Record, p. 1.
3 Exhibit "C," Records, p. 15.
4 Exhibit "A," Id. at 10.
5 Exhibit "H," id. at 9.
6 TSN, 11 July 1995, pp. 8-9.
7 Id. at 3-4.
8 Rollo, p. 68.
9 Id. at 41-42.
10 Supra.
11 Id. at 362, 365.
12 Cuello Calon, Derecho Penal, Volume I, 8th ed., p. 202.
13 "Que la situacion de necessidad no haya sido provocado
intencionadamente por el sujeto." Id. at 368.
14 Burdick, Law of Crimes, Volume l, p. 238.
15 Groizard, El Derecho Penal de 1870, Volume 1, 1929 ed.
16 TSN, 26 July 1994, pp. 4-6.
17 People
vs. Parba, 364 SCRA 488 (2001).
18 People
vs. Delim, G.R. No. 142773, January 28, 2003.
19 See People
vs. Cortez, 348 SCRA 663 (2000).
20 See People
vs. Abrazaldo, G.R. No. 124392,
February 7, 2003.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
FIRST DIVISION
G.R. No. 199892
December 10, 2012
PEOPLE OF THE
PHILIPPINES, Plaintiff-Appellee,
vs.
ARTURO PUNZALAN, JR., Accused-Appellant.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
This is an appeal from the Decision 1 dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision2 dated March 21, 2007 of the Regional Trial Court (RTC) of fba,
Zambales and affirming his conviction for the complex crime of double murder
with multiple attempted murder, with certain modifications on the civil
liability imposed on appellant.3
In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio
Duclayna, SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1
Erlinger Bundang were among the members of the Philippine Navy sent for
schooling at the Naval Education and Training Command (NETC) at San Miguel, San
Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the afternoon,
they went to the "All-in-One" Canteen to have some drink. Later, at
around 10:00 in the evening, they transferred to a nearby videoke bar,
"Aquarius," where they continued their drinking session. Shortly
thereafter, a heated argument between SN1 Bacosa and appellant ensued regarding
a flickering light bulb inside "Aquarius."4 When SN1 Bacosa suggested that the light be turned off ("Patayin
ang ilaw"), appellant who must have misunderstood and misinterpreted
SN1 Bacosa’s statement belligerently reacted asking, "Sinong papatayin?,"
thinking that SN1 Bacosa’s statement was directed at him.5 SN1 Cuya tried to pacify SN1 Bacosa and appellant, while SN1
Bundang apologized to appellant in behalf of SN1 Bacosa. However, appellant was
still visibly angry, mumbling unintelligible words and pounding his fist on the
table.6
To avoid further trouble, the navy personnel decided to leave
"Aquarius" and return to the NETC camp. They walked in two’s, namely,
SN1 Bundang and SN1 Domingo in the first group, followed by the group of SN1
Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with
each group at one arm’s length distance from the other.7 Along the way, they passed by the NETC sentry gate which was being
manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that time.8 SN1 Andal and SN1 Duclayna even stopped by to give the sentries
some barbecue before proceeding to follow their companions.9
Soon after the navy personnel passed by the sentry gate, SN1 De
Guzman and F1EN Dimaala flagged down a rushing and zigzagging maroon Nissan van
with plate number DRW 706. The sentries approached the van and recognized
appellant, who was reeking of liquor, as the driver. Appellant angrily uttered,
"kasi chief, gago ang mga ‘yan!," while pointing toward the
direction of the navy personnel’s group. Even before he was given the go signal
to proceed, appellant shifted gears and sped away while uttering, "papatayin
ko ang mga ‘yan!"10 While F1EN Dimaala was writing the van’s plate number and details in
the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De Guzman saw how
the van sped away towards the camp and suddenly swerved to the right hitting
the group of the walking navy personnel prompting him to exclaim to F1EN
Dimaala, "chief, binangga ang tropa!" SN1 De Guzman then asked
permission to go to the scene of the incident and check on the navy personnel.11
When they were hit by the vehicle from behind, SN1 Cuya and SN1
Bacosa were thrown away towards a grassy spot on the roadside. They momentarily
lost consciousness.12 When they came to, they saw SN1 Duclayna lying motionless on the
ground.13 SN1 Cuya tried to resuscitate SN1 Duclayna, while SN1 Bacosa tried
to chase the van.14
SN1 Domingo was not hit by the van as he was in the first group and
was pushed away from the path of the speeding van. He was able to see the
vehicle’s plate number. He also tried to chase the van with SN1 Bacosa but they
turned around when the vehicle made a U-turn as they thought that it would come
back for them. The vehicle, however, sped away again when other people started
to arrive at the scene of the incident.15
SN1 De Guzman found SN1 Cuya administering cardiopulmonary
resuscitation (CPR) on SN1 Duclayna. He also saw the misshapen body of SN1
Andal lying some 50 meters away, apparently dragged there when the speeding van
hit SN1 Andal. SN1 Cuya instructed SN1 De Guzman to get an ambulance but the
car of the officer on duty at that time arrived and they boarded SN1 Duclayna’s
body to the vehicle to be brought to the hospital.16 The other injured navy personnel, namely, SN1 Cuya, SN1 Bacosa, and
SN1 Bundang, were brought to the infirmary for treatment.17
Members of the local police soon arrived at the scene of the crime.
Senior Police Officer (SPO) 1 Roberto Llorico, the police investigator, found
the bloodied lifeless body of SN1 Andal lying on the side of the road. SPO1
Llorico was informed that appellant was the suspect. Fortunately, one of the
responding officers was appellant’s neighbor and led SPO1 Llorico to
appellant’s place where they found appellant standing near his gate. Appellant
appeared drunk and was reeking of alcohol. They also saw the van parked inside
the premises of appellant’s place. Its front bumper was damaged. When they
asked appellant why he ran over the navy personnel, he simply answered that he
was drunk. The police officers then invited appellant to the police station and
brought the van with them.18
A post mortem examination was conducted on the bodies of SN1 Andal
and SN1 Duclayna by Dr. Jericho Cordero of Camp Crame Medical Division. Dr.
Cordero’s findings were that the injuries sustained by SN1 Andal were fatal and
caused by a hard blunt object that hit his body. The force of the impact was
such that the internal organs like the kidneys, mesentery and spleen were also
fatally injured. SN1 Andal died of cardiorespiratory arrest as a result of
massive blunt traumatic injuries to the head, thorax and abdomen. On the other
hand, SN1 Duclayna sustained fatal injuries to the head and liver. The head and
neck injuries were such that a lot of blood vessels were ruptured and the
fractures were embedded in the brain. The laceration on the liver, also a
mortal injury, was a blunt traumatic injury.19
As regards the other navy personnel, SN1 Cuya suffered lacerated wounds
on the head and different parts of the body for which he was confined at the
infirmary for about eighteen (18) days;20 SN1 Bacosa sustained injuries on his knee and left hand and stayed
in the infirmary for a day;21 and SN1 Bundang suffered injuries to his right foot.22
Appellant was thereafter charged under an Information23 which reads as follows:
That on or about the 10th day of August 2002, at about 11:00
o’clock in the evening, in Brgy. West Dirita, Municipality of San Antonio,
Province of Zambales, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with intent to kill, while driving and in
control of a Nissan Van with plate no. DRW 706, did there and then wil[l]fully,
unlawfully and feloniously, bump, overrun, smash and hit from behind with the
use of the said van, the following persons: Antonio Duclayna, Arnulfo Andal,
Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, all members of
the Philippine [N]avy then assigned at the Naval Education and Training Command
in San Antonio, Zambales, thereby inflicting upon them the following physical
injuries, to wit:
DANILO CUYA:
"Head Injury, grade 1 (Lacerated wound 5.0 cm,
accipitoparietal area, (L) and lacerated wound, Lower lip) 2 to VA"
EVELIO BACOSA:
"Multiple abrasion, wrist, volar surface (L), 2nd digit,
abrasion, dorsun, (L) foot"
ERLINGER BUNDANG:
"Abrasion, medial maleolus, (R)"
ARNULFO ANDAL:
"Head Injury, Grade IV; (Depressed Fracture, Frontal:
Lacerated wounds, 8.0 cm 3.0 cm. forehead, and 5.0 cm parietal, (R);
Avulsion, medial aspect, upper arm to elbow, hip and enguinal area,
(L);
Multiple abrasion, anterior and posterior chest, knees and (R)
footsecondary to VA"
ANTONIO DUCLAYNA:
"Head Injury, Grade IV (Lacerated wound, Contusion, Hematoma
(R) Parietal) secondary to VA"
which act of said accused directly caused the death of Arnulfo
Andal and Antonio Duclayna, and in so far as Danilo Cuya, Evelio Bacosa and
Erlinger Bundang were concerned, said accused performed all the acts of
execution which would produce the crime of Murder as a consequence, but
nevertheless, did not produce said crime by reason of cause/s independent of
his will, that is, by the timely and able medical assistance rendered to said
Danilo Cuya, Evelio Bacosa and Erlinger Bundang, which prevented their death,
and finally as to Cesar Domingo, said accused commenced the commission of the
acts constituting Murder directly by overt acts, but was not able to perform
all the acts of execution by reason of some cause other than accused’s own
desistance, that is due to the timely avoidance of the van driven by accused,
and that the commission of the crimes was attended with treachery, evident
premeditation, cruelty and use of a motor vehicle, and by deliberately and
inhuman[ely] augmenting the suffering of the victim Arnulfo Andal, to the
damage and prejudice of Danilo Cuya, Evelio Bacosa, Erlinger Bundang and Cesar
Domingo and the family and heirs of the deceased Arnulfo Andang and Antonio
Duclayna.
When arraigned, appellant maintained his innocence.24
After pre-trial, trial ensued and the prosecution presented
evidence to establish the facts stated above.
In his defense, appellant testified that in the evening of August
10, 2002, he was drinking with Marvin Acebeda and Romeo Eusantos at the
"Aquarius" videoke bar. When he sang, the navy personnel who were
also inside the bar laughed at him as he was out of tune. He then stood up,
paid his bills and went out. After a while, Acebeda followed him and informed
him that the navy personnel would like to make peace with him. He went back
inside the bar with Acebedo and approached the navy personnel. When SN1 Bacosa
appeared to reach out for appellant’s hand, appellant offered his hand but SN1
Bacosa suddenly punched appellant’s right ear. To avoid further altercation,
appellant left the bar with Acebeda in tow. Appellant went home driving his
van, with the spouses Romeo and Alicia Eusantos who hitched a ride as
passengers. When they passed by the sentry, somebody threw stones at the van.
When he alighted and inspected the vehicle, he saw that one of the headlights
was broken. Thereafter, he saw SN1 Bacosa and another man approaching him so he
went back inside the van but the duo boxed him repeatedly on his shoulder
through the van’s open window. When he saw the four other navy personnel coming
towards him, he accelerated the van. During the whole incident, Romeo was
asleep as he was very drunk while Alicia was seated at the back of the van.
Upon reaching appellant’s home, the spouses alighted from the van and proceeded
to their place. After 20 minutes, police officers arrived at appellant’s house
and told him that he bumped some people. Appellant went with the police
officers to the police station where he was investigated and detained.25
Appellant’s only other witness was Alicia Eusantos. She testified
that she and her husband hitched a ride with appellant in the evening of August
10, 2002. She did not notice any unusual incident from the time they rode the
vehicle until they alighted from it. She learned about the incident on the
following day only when her statement was taken by the police.26
After the parties have rested their respective cases, the RTC of
Iba, Zambales found appellant guilty and rendered a Decision dated March 21,
2007 with the following dispositive portion:
IN VIEW THEREOF, accused ARTURO PUNZALAN, JR. is found GUILTY
beyond reasonable doubt of the complex crime of Double Murder qualified by
treachery with Attempted Murder attended by the aggravating circumstance of use
of motor vehicle and is hereby sentenced to suffer the penalty of Reclusion
Perpetua.
For the death of SN1 Antonio Duclayna and SN1 Arnulfo Andal, civil
indemnity of ₱50,000.00 each is awarded to their heirs. This is in addition to
the amount of moral damages at ₱50,000.00 each for the emotional and mental
sufferings, plus ₱12,095.00 to the heirs of Duclayna representing actual
damages.
Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar
Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang ₱30,000.00 each or an
aggregate amount of ₱120,000.00 as indemnity for their attempted murder.27
Appellant filed an appeal with the Court of Appeals. In his brief,28 appellant claimed that the trial court erred in not finding that he
may not be held criminally liable as he merely acted in avoidance of greater
evil or injury, a justifying circumstance under paragraph 4, Article 11 of the
Revised Penal Code. His act of increasing his vehicle’s speed was reasonable
and justified as he was being attacked by two men whose four companions were
also approaching. He asserted that the attack against him by the two navy
personnel constituted actual and imminent danger to his life and limb. The
sight of the four approaching companions of his attackers "created in his
mind a fear of greater evil," prompting him to speed up his vehicle to
avoid a greater evil or injury to himself. According to appellant, if he
accidentally hit the approaching navy men in the process, he could not be held
criminally liable therefor. The instinct of self-preservation would make one
feel that his own safety is of greater importance than that of another.29
Appellant further faulted the trial court in appreciating the
qualifying circumstance of treachery. He asserted that nothing in the records
would show that he consciously or deliberately adopted the means of execution.
More importantly, treachery was not properly alleged in the Information.30
The Office of the Solicitor General (OSG), on behalf of the People
of the Philippines, refuted the arguments of appellant and defended the
correctness of the RTC Decision. In its brief,31 the OSG claimed that the trial court rightly rejected appellant’s
defense of avoidance of greater evil or injury. Appellant’s version of the
events did not conform to the physical evidence and it was not consistent with
the testimony of his own witness.
The OSG also argued that treachery was appropriately appreciated by
the trial court. The Information was written in a way that sufficiently
described treachery where "the unsuspecting victims were walking towards
their barracks and totally unprepared for the unexpected attack from behind."32
After considering the respective arguments of the parties, the
Court of Appeals rendered the assailed Decision dated April 29, 2011 with the
following decretal portion:
WHEREFORE, the instant Appeal is Denied. The assailed Decision, dated March 21, 2007, of the
Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No.
RTC-3492-I, is AFFIRMED with MODIFICATION, in that
Accused-Appellant is hereby ordered to pay the heirs of SN1 Antonio Duclayna
and SN1 Arnulfo Andal civil indemnity of Php75,000, moral damages of Php75,000,
temperate damages of Php25,000 and exemplary damages of Php30,000. In addition
to the foregoing damages, Accused-Appellant is as well held liable to pay the
heirs of SN1 Andal the amount of Php2,172,270.21 to represent the amount of
loss of earning capacity of SN1 Andal.
Accused-Appellant is likewise ordered to pay the surviving victims,
SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang,
moral and exemplary damages in the amount of Php40,000 and Php30,000,
respectively. Award of temperate damages in the amount of Php25,000 is proper
in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the unsubstantiated amount
of pecuniary losses they suffered on account of the injuries they sustained.
SN1 Cesar Domingo, however, is not entitled to temperate damages.33
Hence, this appeal.
Both appellant and the OSG adopted the respective briefs they filed
in the Court of Appeals.34
Is appellant guilty of the complex crime of murder with frustrated
murder?
After a thorough review of the records of this case and the
arguments of the parties, this Court affirms appellant’s conviction.
Both the RTC and the Court of Appeals found the evidence presented
and offered by the prosecution credible and that the "prosecution
witnesses had overwhelmingly proved beyond reasonable doubt the culpability of
the Accused-Appellant."35 The Court of Appeals correctly observed that prosecution witnesses
F1EN Dimaala and SN1 De Guzman "positively identified accused-appellant as
the one who hit and ran over the victims."36 The Court of Appeals further found:
The testimonies of the prosecution witnesses, taken together,
inevitably showed the criminal intent of the Accused-Appellant to inflict harm
on the victims. They testified on the incident in a clear, concise,
corroborative, and straightforward manner. Thus, their testimonies must prevail
over the testimony given by the Accused-Appellant which, on the other hand, was
neither substantiated nor supported by any evidence.
The prosecution witnesses testified that they actually saw how
Accused-Appellant ran over the victims who were walking inside the NETC camp on
the night of August 10, 2002. Accused-Appellant, who was driving his van from
behind, suddenly bumped and ran over the victims. The victims were thrown away,
resulting in the instantaneous death of SN1 Duclayna and SN1 Andal and causing
injuries to the other victims.
x x x x
Accused-Appellant’s version of the crime, upon which the justifying
circumstance of avoidance of greater evil or injury is invoked, is baseless.
This is because his assertions anent the existence of the evil which he sought
to be avoided [did] not actually exist as [they] neither conformed to the
evidence at hand nor [were] [they] consistent with the testimony of his own
witness, Alicia Eusantos x x x.
x x x x
Accused-Appellant’s own witness, Alicia Eusantos, not only failed
to corroborate his claim but also belied Accused-Appellant’s claim that he was
attacked by the Philippine Navy personnel. Alicia Eusantos categorically stated
that she did not witness any unusual incident in the evening of August 10, 2002
while on board the Nissan Urvan Van driven by Accused-Appellant while they were
cruising the access road going to the NETC compound. Accused-Appellant’s claim,
therefore, is more imaginary than real. The justifying circumstance of Avoidance
of Greater Evil or Injury cannot be invoked by the Accused-Appellant as the
alleged evil sought to be avoided does not actually exist.37
Moreover, whether or not petitioner acted in avoidance of greater
evil or injury is a question of fact. It is an issue which concerns doubt or
difference arising as to the truth or the falsehood of alleged facts.38 In this connection, this Court declared in Martinez v.
Court of Appeals39 :
[T]he well-entrenched rule is that findings of fact of the trial
court in the ascertainment of the credibility of witnesses and the probative
weight of the evidence on record affirmed, on appeal, by the CA are accorded
high respect, if not conclusive effect, by the Court and in the absence of any
justifiable reason to deviate from the said findings.
This Court has combed through the records of this case and found no
reason to deviate from the findings of the trial and appellate courts. There is
nothing that would indicate that the RTC and the Court of Appeals
"ignored, misconstrued, misunderstood or misinterpreted cogent facts and
circumstances of substance, which, if considered, will alter the outcome of the
case."40
Under paragraph 4, Article 11 of the Revised Penal Code, to
successfully invoke avoidance of greater evil as a justifying
circumstance, 41 the following requisites should be complied with:
(1) the evil sought to be avoided actually exists;
(2) the injury feared be greater than that done to avoid it; and
(3) there be no other practical and less harmful means of
preventing it.
The RTC and the Court of Appeals rejected appellant’s self-serving
and uncorroborated claim of avoidance of greater evil. The trial and appellate
courts noted that even appellant’s own witness who was in the van with
appellant at the time of the incident contradicted appellant’s claim. Thus, the
RTC and the Court of Appeals concluded that the evil appellant claimed to avoid
did not actually exist. This Court agrees.
Moreover, appellant failed to satisfy the third requisite that
there be no other practical and less harmful means of preventing it. Under
paragraph 4, Article 11 of the Revised Penal Code, infliction of damage or
injury to another so that a greater evil or injury may not befall one’s self
may be justified only if it is taken as a last resort and with the least
possible prejudice to another. If there is another way to avoid the injury
without causing damage or injury to another or, if there is no such other way
but the damage to another may be minimized while avoiding an evil or injury to
one’s self, then such course should be taken.
In this case, the road where the incident happened was wide, some 6
to 7 meters in width,42 and the place was well-lighted.43 Both sides of the road were unobstructed by trees, plants or
structures.44 Appellant was a driver by occupation.45 However, appellant himself testified that when he shifted to the
second gear and immediately stepped on the accelerator upon seeing the four
navy personnel approaching from in front of him,46 he did not make any attempt to avoid hitting the approaching navy
personnel even though he had enough space to do so. He simply sped away
straight ahead, meeting the approaching navy personnel head on, totally
unmindful if he might run them over.47 He therefore miserably failed to resort to other practical and less
harmful available means of preventing the evil or injury he claimed to be
avoiding.
The appreciation of treachery as a circumstance that qualified the
killing of SN1 Duclayna and SN1 Andal and the attempted killing of the others
is also correct. This Court agrees with the following disquisition of the Court
of Appeals:
We find that the RTC correctly appreciated the existence of
treachery in the commission of the offense. Treachery qualifies the killing to
murder. There is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof which tend
directly and especially to ensure its execution, without risk to himself
arising from any defense which the offended party might make. The elements of
treachery are: (1) the employment of means of execution that gives the person attacked
no opportunity to defend himself or to retaliate; and (2) the means of
execution was deliberate or consciously adopted.
Accused-Appellant’s act of running over the victims with his van
from behind while the victims were walking inside the NETC camp was a clear act
of treachery. The victims were not given any warning at all regarding the
assault of the Accused-Appellant. The victims were surprised and were not able
to prepare and repel the treacherous assault of Accused-Appellant. The
prosecution witnesses testified that after they had flagged down
Accused-Appellant’s van, the latter accelerated and upon reaching the middle of
the road, it suddenly swerved to the right hitting the victims who were
startled by the attack.
x x x x
A close review of the information would disclose that the
qualifying circumstance of treachery was stated in ordinary and concise
language and the said act was described in terms sufficient to enable a layman
to know what offense is intended to be charged, and enables the court to
pronounce proper judgment.
We quote pertinent portion of the information, which reads:
"x x x the said accused, with intent to kill, while driving
and in control of a Nissan Van with plate No. DRW 706, did then and there
willfully and feloniously, bump, overrun,
smash and hit from behind with the use of said van, x x x."
Applying the Supreme Court’s discussion in People vs. Batin,
citing the case of Balitaan v. Court of First Instance of Batangas,
to wit:
"The main purpose of requiring the various elements of a crime
to be set forth in an Information is to enable the accused to suitably prepare
his defense. He is presumed to have no independent knowledge of the facts that
constitute the offense. x x x.
It is often difficult to say what is a matter of evidence, as
distinguished from facts necessary to be stated in order to render the
information sufficiently certain to identify the offense. As a general rule,
matters of evidence, as distinguished from facts essential to the description
of the offense, need not be averred. For instance, it is not necessary to show
on the face of an information for forgery in what manner a person is to be
defrauded, as that is a matter of evidence at the trial.
We hold that the allegation
of treachery in the Information is sufficient. Jurisprudence is replete with
cases wherein we found the allegation of treachery sufficient without any
further explanation as to the circumstances surrounding it."
Clearly, We find that the information is sufficient as it not
merely indicated the term treachery therein but also described the act itself
constituting treachery. Such statement, without a doubt, provided the
supporting facts that constituted the offense, sufficiently alleging the
qualifying circumstance of treachery when it pointed out the statement,
"smash and hit from behind."48 (Emphases supplied; citations omitted.)
The essence of treachery is the sudden and unexpected attack by the
aggressor on unsuspecting victims, depriving the latter of any real chance to
defend themselves, thereby ensuring its commission without risk to the
aggressor, and without the slightest provocation on the part of the victims.49 The six navy personnel were walking by the roadside, on their way
back to their camp. They felt secure as they have just passed a sentry and were
nearing their barracks. They were totally unaware of the threat to their life
as their backs were turned against the direction where appellant’s speeding van
came. They were therefore defenseless and posed no threat to appellant when
appellant mowed them down with his van, killing two of them, injuring three
others and one narrowly escaping injury or death. Beyond reasonable doubt,
there was treachery in appellant’s act. This was sufficiently alleged in the
Information which not only expressly mentioned treachery as one of the
circumstances attending the crime but also described it in understandable
language:
[T]he said accused, with intent to kill, while driving and in control
of a Nissan Van with plate no. DRW 706, did then and there willfully,
unlawfully and feloniously, bump,
overrun, smash and hit from behind with the use of said van, the
following persons: Antonio Duclayna, Arnulfo Andal, Evelio Bacosa, Danilo Cuya,
Erlinger Bundang and Cesar Domingo, x x x.50 (Emphasis supplied.)
Use of motor vehicle was also properly considered as an aggravating
circumstance. Appellant deliberately used the van he was driving to pursue the
victims. Upon catching up with them, appellant ran over them and mowed them
down with the van, resulting to the death of SN1 Andal and SN1 Duclayna and
injuries to the others.51 Thereafter, he continued to speed away from the scene of the
incident. Without doubt, appellant used the van both as a means to commit a
crime and to flee the scene of the crime after he committed the felonious act.
The felony committed by appellant as correctly found by the RTC and
the Court of Appeals, double murder with multiple attempted murder, is a
complex crime contemplated under Article 48 of the Revised Penal Code:
Art. 48. Penalty for complex crimes. – When a single
act constitutes two or more grave or less grave felonies, or when an offense is
a necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.
Appellant was animated by a single purpose, to kill the navy
personnel, and committed a single act of stepping on the accelerator, swerving
to the right side of the road ramming through the navy personnel, causing the
death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an
attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo.52 The crimes of murder and attempted murder are both grave felonies53 as the law attaches an afflictive penalty to capital punishment (reclusion
perpetua to death) for murder while attempted murder is punished
by prision mayor,54 an afflictive penalty.55
Under Article 248 of the Revised Penal Code, as amended, murder is
punishable by reclusion perpetua to death. Article 6356 of the same Code provides that if the penalty prescribed is composed
of two indivisible penalties, as in the instant case, and there is an
aggravating circumstance the higher penalty should be imposed. Since use of
vehicle can be considered as an ordinary aggravating circumstance, treachery,
by itself, being sufficient to qualify the killing, the proper imposable
penalty – the higher sanction – is death. However, in view of the enactment of
Republic Act No. 9346,57 prohibiting the imposition of the death penalty, the penalty for
the killing of each of the two victims is reduced to reclusion
perpetua without eligibility for parole.58 The penalty of reclusion perpetua thus imposed by
the Court of Appeals on appellant for the complex crime that he committed is
correct.
The awards of ₱75,000.00 civil indemnity and ₱75,000.00 moral
damages to the respective heirs of SN1 Andal and SN1 Duclayna are also proper.
These awards, civil indemnity and moral damages, are mandatory without need of
allegation and proof other than the death of the victim, owing to the fact of
the commission of murder.59
Moreover, in view of the presence of aggravating circumstances,
namely the qualifying circumstance of treachery and the generic aggravating
circumstance of use of motor vehicle, the award of ₱30,000.00 exemplary damages
to the respective heirs of the deceased victims is also correct.60 In addition, it cannot be denied that the heirs of the deceased
victims suffered pecuniary loss although the exact amount was not proved with
certainty.1âwphi1 Thus, the award of ₱25,000.00 temperate damages to the heirs
of each deceased victim is appropriate.61
As it was proven that, at the time of his death, SN1 Andal had a
monthly income of ₱13,245.55,62 the grant of ₱2,172,270.21 for loss of earning capacity is in
order.63
As to the surviving victims, SN1 Cuya, SN1 Bacosa, SN1 Bundang and
SN1 Domingo, the Court of Appeals correctly granted each of them ₱40,000 moral
damages for the physical suffering, fright, serious anxiety, moral shock, and
similar injuries caused to them by the incident.64 And as the crime was attended by aggravating circumstances, each of
them was properly given ₱30,000 exemplary damages.65
Finally, those who suffered injuries, namely, SN1 Cuya, SN1 Bacosa
and SN1 Bundang, were correctly awarded ₱25,000 temperate damages each for the
pecuniary loss they suffered for hospitalization and/or medication, although no
receipts were shown to support said loss.66
WHEREFORE, the appeal is hereby DENIED.
The Decision dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02816 affirming the conviction of appellant Arturo Punzalan, Jr. for the
complex crime of double murder with multiple attempted murder, imposing upon
him the penalty of reclusion perpetua and ordering him to pay
the following:
(a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio
Duclayna:
(i) ₱75,000.00 civil indemnity;
(ii) ₱75,000.00 moral damages;
(iii) ₱30,000.00 exemplary damages; and
(iv) ₱25,000.00 temperate damages;
(b) To the heirs of SN1 Andal, ₱2,172,270.21 for loss of earning
capacity;
(c) To each of the surviving victims, SN1 Danilo Cuya, SN1 Evelio
Bacosa, SN1 Erlinger Bundang and SN1 Cesar Domingo:
(i) ₱40,000.00 moral damages; and
(ii) ₱30,000.00 exemplary damages; and
(d) To SN1 Cuya, SN1 Bacosa and SN1 Bundang, ₱25,000.00 temperate
damages each is AFFIRMED.
SO ORDERED.
TERESITA J. LEONARDO-DE
CASTRO
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
Chairperson
|
LUCAS P. BERSAMIN
Associate Justice
|
MARTIN S. VILLARAMA, JR.
Associate Justice
|
BIENVENIDO L. REYES
Associate Justice
C E R T I F I C A T I O N
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
Footnotes
1 Rollo, pp. 2-28; penned by Associate Justice Noel G. T~jam with Associate
Justices Marlene Gonzales-Sison and Leoncia R. Dimagiba, concurring.
2 CA rolla, pp. 16-50.
3 Rollo, pp. 27-28. In particular, the Court of Appeals ordered appellant
to pay the respective heirs of his victims SN1 Antonio Duclayna and SN1 Arnulfo
Andal ₱75,000 civil indemnity, ₱75,000 moral damages, ₱30,000 exemplary damages
and ₱25,000 temperate damages, plus ₱2,172,270.21 to the heirs of SN1 Andal
representing SN1 Andal’s loss of earning capacity. The Court of Appeals made
the further modifications of ordering appellant to pay each of his surviving
victims, SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and SN1 Erlinger
Bundang, ₱40,000 moral damages and ₱30,000 exemplary damages, plus ₱25,000
temperate damages in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the
pecuniary losses they suffered on account of the injuries sustained.
4 Id. at 5.
5 Records, Vol. I, p. 199; testimony of SN1 Cesar Domingo, TSN, July
28, 2003, p. 7.
6 Rollo, p. 6.
7 Records, Vol. I, pp. 144-145; testimony of SN1 Evelio Bacosa, TSN,
March 24, 2003, pp. 12-13.
8 Rollo, p. 6.
9 Records, Vol. I, pp. 290-291 and 370; testimonies of F1EN Alejandro
Dimaala and SN1 Noel De Guzman , TSNs, May 26, 2004, pp. 3-4 and of January 19,
2005, p. 6, respectively.
10 Id. at 290-297, 370-375.
11 Rollo, p. 7.
12 Id. at 6.
13 Records, Vol. I, pp. 83-84; testimony of SN1 Danilo Cuya, TSN,
December 11, 2002, pp. 9-10.
14 Id. at 147; See also testimony of SN1 Evelio Bacosa, TSN, March 24,
2003, p. 15.
15 Id. at 202-203; testimony of SN1 Cesar Domingo, TSN, July 28, 2003,
pp. 10-11.
16 Id. at 383-384; testimony of SN1 Noel De Guzman, TSN, February 23,
2005, pp. 4-5.
17 Id. at 86, 148 and 204; testimonies of SN1 Danilo Cuya, SN1 Evelio
Bacosa and SN1 Cesar Domingo, TSNs, December 11, 2002, p. 12, March 24, 2003,
p. 16 and July 28, 2003, p. 12, respectively.
18 Rollo, p. 8.
19 Id. at 8-9.
20 Id. at 6.
21 Id. at 7.
22 Records, Vol. I, p. 149; testimony of SN1 Evelio Bacosa, TSN, March
24, 2003, p. 17.
23 Id. at 2-3.
24 Rollo, p. 5.
25 Id. at 9-10.
26 Id. at 10.
27 CA rollo, p. 50.
28 Id. at 70-88.
29 Id. at 83-85.
30 Id. at 85-87.
31 Id. at 131-172.
32 Id. at 169.
33 Rollo, pp. 27-28.
34 Id. at 36-40; Manifestations of the OSG and appellant dated April
25, 2012 and May 21, 2012, respectively.
35 Id. at 13.
36 Id.
37 Id. at 16-20.
38 Republic v. Malabanan, G.R. No. 169067, October 6, 2010, 632 SCRA 338, 345. In this
case, the Court stated: "There is a question of fact when the doubt [or
difference] arises as to the truth or [the falsehood] of the alleged
facts."
39 G.R. No. 168827, April 13, 2007, 521 SCRA 176, 193.
40 People v. Belo, G.R. No. 187075, July 5, 2010, 623 SCRA 527, 536.
41 Art. 11. Justifying circumstances. – The following do
not incur any criminal liability:
x x x x
4. Any person who, in order to avoid an evil or injury, does an act
which causes damage to another, provided that the following requisites are
present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.
42 Records, Vol. I, p. 317; testimony of F1EN Alejandro Dimaala, TSN
of July 14, 2004, p. 6.
43 Id. at 386-387; testimony of SN1 Noel de Guzman, TSN, February 23,
2005, pp. 7-8.
44 Records, Vol. II, p. 736; TSN, May 15, 2006, p. 7; Exhibits
"C-3" and "C-4."
45 Id. at 710; testimony of appellant, TSN, February 15, 2006, p. 2.
46 Id. at 717; TSN, February 15, 2006, p. 9.
47 Id. at 738; TSN, May 15, 2006, p. 9.
48 Rollo, pp. 16-17, 22-23.
49 People v. Gutierrez, G.R. No. 188602, February 4, 2010, 611 SCRA 633, 644.
50 Records, p. 2.
51 See People v. Mallari, 452 Phil. 210, 222 (2003). This case has similarity to the case
of appellant herein: Mallari deliberately used his truck in pursuing the victim
and, upon catching up with the victim, Mallari hit him with the truck, as a
result of which the victim died instantly. The Court found that the truck was
the means used by Mallari to perpetrate the killing of his victim.
52 The crime committed against SN1 Cuya, SN1 Bacosa, SN1 Bundang and
SN1 Domingo, is a case of multiple attempted murder because none of them was
proven to have suffered a mortal wound from the incident. This Court stated
in Palaganas v. People (G.R. No. 165483, September 12, 2006,
533 Phil. 169, 193 [2006]): "when the accused intended to kill his victim,
as manifested by his use of a deadly weapon in his assault, and his victim
sustained fatal or mortal wound /s but did not die because of timely medical
assistance, the crime committed is frustrated murder or frustrated homicide
depending on whether or not any of the qualifying circumstances under Article
249 of the Revised Penal Code are present. However, if the wound/s sustained by
the victim in such a case were not fatal or mortal, then the crime committed is
only attempted murder or attempted homicide. If there was no intent to kill on
the part of the accused and the wound/s sustained by the victim were not fatal,
the crime committed may be serious, less serious or slight physical
injury."
53 Art. 9. Grave felonies, less grave felonies, and light
felonies. – Grave felonies are those to which the law attaches the capital
punishment or penalties which in any of their periods are afflictive, in
accordance with Article 25 of this Code.
54 See Art. 248, Revised Penal Code defining and punishing the crime of
murder, in relation to Art. 250 of the same Code.
55 In fact, in this case, the murders of SN1 Andal and SN1 Duclayna
are sufficient to constitute a complex crime as they are two grave felonies
resulting from a single act.
56 Art. 63. Rules for the application of indivisible penalties.
– x x x. In all cases in which the law prescribes a penalty composed of two
indivisible penalties the following rules shall be observed in the application
thereof: 1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied. x x x.
57 An Act Prohibiting the Imposition of the Death Penalty, signed into
law on June 24, 2006.
58 Sec. 3 of Republic Act No. 9346 provides that "persons
convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by
reason of this Act, shall not be eligible for parole x x x."
59 People v. Camat, G.R. No. 188612, July 30, 2012.
60 People v. Barde, G.R. No. 183094, September 22, 2010, 631 SCRA 187, 220.
61 Id. at 220-221.
62 Philippine Navy pay slip of SN1 Andal for the period July 1-31,
2002; RTC records, vol. II, p. 683.
63 This amount has been computed using the following formula
established in jurisprudence: Life Expectancy x (Gross Annual Income [GAI] less
Living Expenses [50% GAI]) Where Life Expectancy = 2/3 x (80 – age of the
deceased). Thus: Unearned income = (2/3 [80-39]) ([₱13,245.55 x 12] – [1/2
[₱13,245.55 x 12
= (2/3 [41]) (₱158,946.60 - ₱79,473.30)
= (2/3 [41]) (₱79,473.30)
= (27.3333335) (₱79,473.30)
= ₱2,172,270.21.
64 People v. Nelmida, G.R. No. 184500, September 11, 2012.
65 Id.
66 Id.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
SECOND DIVISION
March 15, 2017
G.R. No. 195021
NICOLAS VELASQUEZ and
VICTOR VELASQUEZ, Petitioners
vs
PEOPLE OF THE PHILIPPINES,
Respondent
D E C I S I O N
LEONEN, J.:
An accused who pleads a justifying circumstance under Article 11 of
the Revised Penal Code1 admits to the commission of acts, which would otherwise
engender criminal liability. However, he asserts that he is justified in
committing the acts. In the process of proving a justifying circumstance, the
accused risks admitting the imputed acts, which may justify the existence of an
offense were it not for the exculpating facts. Conviction follows if the
evidence for the accused fails to prove the existence of justifying
circumstances.
Through this Petition for Review on Certiorari2 under Rule 45 of the Rules of Court, the accused petitioners
pray that the assailed March 17, 2010 Decision3 and December 10, 2010 Resolution4 of the Court of Appeals in CA-G.R. CR. No. 31333 be reversed
and set aside, and that they be absolved of any criminal liability.
The Court of Appeals' assailed rulings sustained the July 25, 2007
Decision5 of the Regional Trial Court, Branch 41, Dagupan City, which
found petitioners guilty beyond reasonable doubt of attempted murder.
In an Information, petitioners Nicolas Velasquez (Nicolas) and
Victor Velasquez (Victor), along with four (4) others -Felix Caballeda (Felix),
Jojo Del Mundo (Jojo), Sonny Boy Velasquez (Sonny), and Ampong Ocumen (Ampong)
- were charged with attempted murder under Article 248,6 in relation to Article 6,7 of the Revised Penal Code, as follows:
That on May 24, 2003 in the evening at Brgy. Palua, Mangaldan,
Pangasinan and within the jurisdiction of this Honorable Court, the above named
accused while armed with stones and wooden poles, conspiring, confederating and
mutually helping one another, with intent to kill, with treachery and abuse of
superior strength, did, then and there willfully, unlawfully and feloniously
attack, maul and hit JESUS DEL MUNDO inflicting upon him injuries in the vital
parts of his body, the said accused having thus commenced a felony directly by
overt acts, but did not perform all the acts of execution which could have
produced the crime of Murder but nevertheless did not produce it by reason of
some causes or accident other than their own spontaneous desistance to his damage
and prejudice.
Contrary to Article 248 in relation to Article 6 and 50 of the
Revised Penal Code.8
All accused, except Ampong, who remained at large, pleaded not
guilty upon arraignment.9 Trial then ensued.10
According to the prosecution, on May 24, 2003, at about 10:00 p.m.,
the spouses Jesus and Ana Del Mundo (Del Mundo Spouses) left their home to
sleep in their nipa hut, which was about 100 meters away.11 Arriving at the nipa hut, the Del Mundo Spouses saw Ampong
and Nora Castillo (Nora) in the midst of having sex.12 Aghast at what he perceived to be a defilement of his
property, Jesus Del Mundo (Jesus) shouted invectives at Ampong and Nora, who
both scampered away.13 Jesus decided to pursue Ampong and Nora, while Ana Del Mundo
(Ana) left to fetch their son, who was then elsewhere.14 Jesus went to the house of Ampong's aunt, but neither Ampong
nor Nora was there.15 He began making his way back home when he was blocked by
Ampong and his fellow accused.16
Without provocation, petitioner Nicolas hit the left side of Jesus'
forehead with a stone. Petitioner Victor also hit Jesus' left eyebrow with a
stone.17 Accused Felix did the same, hitting Jesus above his left ear.18 Accused Sonny struck Jesus with a bamboo, hitting him at the
back, below his right shoulder.19 Ampong punched Jesus on his left cheek. The accused then left
Jesus on the ground, bloodied. Jesus crawled and hid behind blades of grass,
fearing that the accused might return. He then got up and staggered his way
back to their house.20
Jesus testified on his own ordeal. In support of his version of the
events, the prosecution also presented the testimony of Maria Teresita Viado
(Maria Teresita). Maria Teresita was initially approached by Jesus' wife, Ana,
when Jesus failed to immediately return home.21 She and Ana embarked on a search for Jesus but were
separated.22 At the sound of a man being beaten, she hid behind some
bamboos.23 From that vantage point, she saw the accused mauling Jesus.24 The prosecution noted that about four (4) or five (5) meters
away was a lamp post, which illuminated the scene.25
At the Del Mundo Spouses' residence, Maria Teresita recounted to
them what she had witnessed (Jesus had managed to return home by then).26 Ana and Maria Teresita then brought Jesus to Barangay Captain
Pili ta Villanueva, who assisted them in bringing Jesus to the hospital.27
After undergoing an x-ray examination, Jesus was found to have
sustained a crack in his skull.28 Dr. Jose D. De Guzman (Dr. De Guzman) issued a medico-legal
certificate indicating the following findings:
x.x. Positive Alcoholic Breath
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x10 cm
Depressed skull fracture parietal area left.
x.x.29
Dr. De Guzman noted that Jesus' injuries required medical attention
for four (4) to six (6) weeks.30 Jesus was also advised to undergo surgery.31 He was, however, unable to avail of the required medical
procedure due to shortage of funds.32
The defense offered a different version of events.
According to the accused, in the evening of May 24, 2003,
petitioner Nicolas was roused in his sleep by his wife, Mercedes Velasquez
(Mercedes), as the nearby house of petitioner Victor was being stoned.33
Nicolas made his way to Victor's place, where he saw Jesus hacking
Victor's door. Several neighbors - the other accused - allegedly tried to
pacify Jesus.34 Jesus, who was supposedly inebriated, vented his ire upon
Nicolas and the other accused, as well as on Mercedes.35 The accused thus responded and countered Jesus' attacks,
leading to his injuries.36
In its July 25, 2007 Decision,37 the Regional Tnal Court, Branch 41, Dagupan City found
petitioners and Felix Caballeda guilty beyond reasonable doubt of attempted
murder.38 The court also found Sonny Boy Velasquez guilty beyond
reasorable doubt of less serious physical injuries.39 He was found to have hit Jesus on the back with a bamboo rod.
Jojo Del Mundo was acquitted.40 The case was archived with respect to Ampong, as he remained
at large.41
The dispositive portion of its Decision read:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused NICOLAS VELASQUEZ, VICTOR VELASQUEZ and FELIX CABALLEDA guilty beyond
reasonable doubt of the crime of Attempted Murder defined and penalized under
Article 248 in relation to Art.ides 6, paragraph 3 and 51 of the Revised Penal
Code, and pursuant to the law, sentences each of them to suffer on (sic)
indeterminate penalty of four (4) years and one (1) day of Arrested (sic) Mayor
in its maximum period as minimum to eight (8) years of Prison (sic)
Correctional (sic) in its maximum period to Prison (sic) Mayor in its medium
period as maximum and to pay proportionately to private complainant Jesus del
Mundo the amount of Php55,000.00 as exemplary damages, and to pay the cost of
suit.
The Court likewise finds the accused SONNY BOY VELASQUEZ [guilty]
beyond reasonable doubt of the [crime] of Less Serious Physical Injuries
defined and penalized under Article 265 of the Revised Penal Code and pursuant
thereto, he is hereby sentenced to suffer the penalty of Arresto Mayor on one
(1) month and one (1) day to six (6) months.
Accused JOJO DEL MUNDO is hereby acquitted on the ground of absence
of evidence.
With respect to accused AMPONG OCUMEN, the case against him is
archived without prejudice to its revival as soon as he is arrested and brought
to the jurisdiction of this Court.42
Petitioners and Felix Caballeda filed a motion for reconsideration,
which the Regional Trial Court denied.43
On petitioners' and Caballeda's appeal, the Court of Appeals found
that petitioners and Caballeda were only liable for serious physical injuries
because "first, intent to kill was not attendant inasmuch as the
accused-appellants, despite their superiority in numbers and strength, left the
victim alive and, second, none of [the] injuries or wounds inflicted upon the
victim was fatal."44 The Court of Appeals thus modified the sentence imposed on
petitioners and Caballeda.
The dispositive portion of its assailed March 1 7, 2010 Decision45 read:
WHEREFORE, premises considered, the July 25, 2007 Decision of Branch 41,
Regional Trial Court of Dagupan City is hereby MODIFIED. Instead, accused-appellants are found guilty of
Serious Physical Injuries and each of them is sentenced to suffer the penalty
of imprisonment of six (6) months of arresto mayor as minimum
to four (4) years and two (2) months of prisi6n correccional as
maximum.
SO ORDERED.46 (Emphasis in the original)
Following the denial of their Motion for Reconsideration,
petitioners filed the present Petition.47 They insist on their version of events, particularly on how
they and their co-accused allegedly merely acted in response to Jesus Del
Mundo's aggressive behavior.
For resolution is the issue of whether petitioners may be held
criminally liable for the physical harm inflicted on Jesus Del Mundo. More
specifically, this Court is asked to determine whether there was sufficient
evidence: first, to prove that justifying circumstances existed, and second, to
convict the petitioners.
I
Petitioners' defense centers on their claim that they acted in
defense of themselves, and also in defense of Mercedes, Nicolas' wife and
Victor's mother. Thus, they invoke the first and second justifying
circumstances under Article 11 of the Revised Penal Code:
ARTICLE 11. Justifying Circumstances. - The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present,
and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.
A person invoking self-defense (or defense of a relative) admits to
having inflicted harm upon another person - a potential criminal act under
Title Eight (Crimes Against Persons) of the Revised Penal Code. However, he or
she makes the additional, defensive contention that even as he or she may have
inflicted harm, he or she nevertheless incurred no criminal liability as the
looming danger upon his or her own person (or that of his or her relative)
justified the infliction of protective harm to an erstwhile aggressor.
The accused's admission enables the prosecution to dispense with
discharging its burden of proving that the accused performed acts, which would
otherwise be the basis of criminal liability. All that remains to be
established is whether the accused were justified in acting as he or she did.
To this end, the accused's case must rise on its own merits:
It is settled that when an accused admits [harming] the victim but
invokes self-defense to escape criminal liability, the accused assumes the
burden to establish his plea by credible, clear and convincing evidence;
otherwise, conviction would follow from his admission that he [harmed] the
victim. Self-defense cannot be justifiably appreciated when uncorroborated by
independent and competent evidence or when it is extremely doubtful by itself.
Indeed, in invoking self-defense, the burden of evidence is shifted and the
accused claiming self-defense must rely on the strength of his own evidence and
not on the weakness of the prosecution.48
To successfully invoke self-defense, an accused must establish:
"(1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel such aggression; and (3)
lack of sufficient provocation on the part of the person resorting to
self-defense."49 Defense of a relative under Article 11 (2) of the Revised
Penal Code requires the same first two (2) requisites as self-defense and, in
lieu of the third "in case the provocation was given by the person
attacked, that the one making the defense had no part therein."50
The first requisite - unlawful aggression - is the condition sine
qua non of self-defense and defense of a relative:
At the heart of the claim of self-defense is the presence of an
unlawful aggression committed against appellant. Without unlawful aggression,
self-defense will not have a leg to stand on and this justifying circumstance
cannot and will not be appreciated, even if the other elements are present.
Unlawful aggression refers to an attack amounting to actual or imminent threat
to the life and limb of the person claiming self-defense.51
The second requisite - reasonable necessity of the means employed
to prevent or repel the aggression - requires a reasonable proportionality
between the unlawful aggression and the defensive response: "[t]he means
employed by the person invoking self-defense contemplates a rational
equivalence between the means of attack and the defense."52 This is a matter that depends on the circumstances:
Reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law requires
is rational equivalence, in the consideration of which will enter as principal
factors the emergency, the imminent danger to which the person attacked is
exposed, and the instinct, more than the reason, that moves or impels the
defense, and the proportionateness thereof does not depend upon the harm done,
but rests upon the imminent danger of such injury ... As WE stated in the case
of People vs. Lara, in emergencies of this kind, human nature does not act upon
processes of formal reason but in obedience to the instinct of
self-preservation; and when it is apparent that a person has reasonably acted
upon this instinct, it is the duty of the courts to sanction the act and hold
the act irresponsible in law for the consequences.53 (Citations omitted)
The third requisite - lack of sufficient provocation - requires the
person mounting a defense to be reasonably blameless. He or she must not have
antagonized or incited the attacker into launching an assault. This also
requires a consideration of proportionality. As explained in People v.
Boholst-Caballero,54 "[p]rovocation is sufficient when it is proportionate to
the aggression, that is, adequate enough to impel one to attack the person
claiming self-defense."55
II
We find petitioners' claims of self-defense and defense of their
relative, Mercedes, to be sorely wanting.
Petitioners' entire defense rests on proof that it was Jesus who
initiated an assault by barging into the premises of petitioners' residences,
hacking Victor's door, and threatening physical harm upon petitioners and their
companions. That is, that unlawful aggression originated from Jesus.
Contrary to what a successful averment of self-defense or defense
of a relative requires, petitioners offered nothing more than a self-serving,
uncorroborated claim that Jesus appeared out of nowhere to go berserk in the
vicinity of their homes. They failed to present independent and credible proof
to back up their assertions. The Regional Trial Court noted that it was highly
dubious that Jesus would go all the way to petitioners' residences to initiate
an attack for no apparent reason.56
The remainder of petitioners' recollection of events strains
credulity. They claim that Jesus launched an assault despite the presence of at
least seven (7) antagonists: petitioners, Mercedes, and the four (4) other
accused. They further assert that Jesus persisted on his assault despite being
outnumbered, and also despite their and their co-accused's bodily efforts to
restrain Jesus. His persistence was supposedly so likely to harm them that, to
neutralize him, they had no other recourse but to hit him on the head with
stones for at least three (3) times, and to hit him on the back with a bamboo
rod, aside from dealing him with less severe blows.57
As the Regional Trial Court noted, however:
The Court takes judicial notice of (the) big difference in the
physical built of the private complainant and accused Victor Velasquez, Sonny
Boy Velasquez, Felix Caballeda and Jojo del Mundo, private complainant is
shorter in height and of smaller built than all the accused.
The said accused could have had easily held the private
complainant, who was heavily drunk as they claim, and disarmed him without the
need of hitting him.58
The injuries which Jesus were reported to have sustained speak
volumes:
3 ems lacerated wound fronto-parietal area left
1 cm lacerated wound frontal area left
Abrasion back left multi linear approximately 20 cm
Abrasion shoulder left, confluent 4x 10 cm
Depressed skull fracture parietal area left.59
Even if it were to be granted that Jesus was the initial aggressor,
the beating dealt to him by petitioners and their co-accused was still
glaringly in excess of what would have sufficed to neutralize him. It was far
from a reasonably necessary means to repel his supposed aggression. Petitioners
thereby fail in satisfying the second requisite of self-defense and of defense
of a relative.
III
In addition to their tale of self-defense, petitioners insist that
the testimony of Maria Teresita is not worthy of trust because she parted ways
with Ana while searching for Jesus.60 They characterize Maria Teresita as the prosecution's
"lone eyewitness."61 They make it appear that its entire case hinges on her. Thus,
they theorize that with the shattering of her credibility comes the complete
and utter ruin of the prosecution's case.62 Petitioners claim that Maria Teresita is the prosecution's
lone eyewitness at the same time that they acknowledge Jesus' testimony, which
they dismissed as laden with inconsistencies.63
These contentions no longer merit consideration.
Petitioners' averment of justifying circumstances was dispensed
with the need for even passing upon their assertions against Maria Teresita's
and Jesus' testimonies.1âwphi1 Upon their mere invocation of self-defense and defense of a
relative, they relieved the prosecution of its burden of proving the acts
constitutive of the offense. They took upon themselves the burden of
establishing their innocence, and cast their lot on their capacity to prove
their own affirmative allegations.1âwphi1 Unfortunately for them, they failed.
Even if we were to extend them a measure of consideration, their
contentions fail to impress.
Petitioners' primordial characterization of Maria Teresita as the
"lone eyewitness," upon whose testimony the prosecution's case was to
rise or fall, is plainly erroneous. Apart from her, Jesus testified about his
own experience of being mauled by petitioners and their co-accused. Maria
Teresita's testimony was only in support of what Jesus recounted.
Moreover, we fail to see how the mere fact of Maria Teresita's
having parted ways with Ana while searching for Jesus diminishes her
credibility. No extraordinary explanation is necessary for this. Their having
proceeded separately may be accounted for simply by the wisdom of how
independent searches enabled them to cover more ground in less time.
Regarding Jesus' recollection of events, petitioners' contention
centers on Jesus' supposedly flawed recollection of who among the six (6)
accused dealt him, which specific blow, and using which specific weapon.64 These contentions are too trivial to even warrant an
independent, point by point audit by this Court.
Jurisprudence is replete with clarifications that a witness'
recollection of crime need not be foolproof: "Witnesses cannot be expected
to recollect with exactitude every minute detail of an event. This is
especially true when the witnesses testify as to facts which transpired in
rapid succession, attended by flurry and excitement."65 This is especially true of a victim's recollection of his or
her own harrowing ordeal. One who has undergone a horrifying and traumatic
experience "cannot be expected to mechanically keep and then give an
accurate account"66 of every minutiae.
Certainly, Jesus' supposed inconsistencies on the intricacies of
who struck him which specific blow can be forgiven. The merit of Jesus'
testimony does not depend on whether he has an extraordinary memory despite
being hit on the head multiple times. Rather, it is in his credible narration
of his entire ordeal, and how petitioners and their co-accused were its
authors. On this, his testimony was unequivocal.
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR.
No. 31333 is AFFIRMED.
SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
|
DIOSDADO M. PERALTA
Associate Justice
|
JOSE CATRAL MENDOZA
Associate Justice
|
SAMUEL R. MARTIRES
Associate Justice
A T T E S T A T I O N
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
Pursuant to the Section 13, Article VIII of the 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
Footnotes
1 REV. PEN. CODE, art. 11 provides:
Article 11. Justifying Circumstances. - The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present,
and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending be not
induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does an act
which causes damage to another, provided that the following requisites are
present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid
it;
Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
2 Rollo, pp. 24-40.
3 Id. at 49-59. The Decision was penned by
Associate Justice Arcangelita M. Romilla-Lontok and concurred in by Associate
Justices Portia Alino-Hormachuelos and Mario V. Lopez of the Second Division,
Court of Appeals, Manila.
4 Id. at 60-62. The Resolution was penned by
Associate Justice Mario V. Lopez and concurred in by Associate Justices
Josefina Guevara-Salonga and Juan Q. Enriquez, Jr. of the Special Former Second
Division, Court of Appeals, Manila.
5 No copy annexed to any of the parties' submissions.
6 REV. PEN. CODE, art. 248 provides:
Article 248. Murder. - Any person who, not falling within the
provisions of article 246 shall kill another, shall be guilty of murder and
shall be punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding
of a vessel, derailment or assault upon a street car or locomotive. fall of an
airship, by means of motor vehicles, or with the use
of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic, or any other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse.
7 REV. PEN. CODE, art. 6 provides:
Article 6. Consummated, Frustrated, 1md Attempted Felonies. - -
Consummated felonies, as well as those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other than
his own spontaneous desistance.
8 Rollo, pp. 187-188. Memorandum.
9 Id. at 188.
10 Id.
11 Id. at 136. Comment.
12 Id. at 136-137. Comment.
13 Id. at 137.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id. at 137-138.
21 Id. at 138.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id. at 138-139.
28 Id. at 139.
29 Id.
30 Id. at 140.
31 Id. at 139.
32 Id.
33 Id. at 27.
34 Id.
35 Id.
36 Id.
37 No copy annexed to any of the parties' submissions.
38 Id. at 28.
39 Id.
40 Id.
41 Id. at 28-29.
42 Id. at 28.
43 Id. at 189. Memorandum.
44 Id. at 56.
45 Id. at 49-59.
46 Id. at 59.
47 Id. at 24-40.
48 Belbis v. People, 698 Phil. 706, 719 (2012) [Per
J. Peralta, Third Division], citing People v. Tagana, 468
Phil. 784, 800 (2004) [Per J. Austria-Martinez, Second Division]; and Marzonia
v. People, 525 Phil. 693, 702-703 (2006) [Per J. Quisumbing, Third
Division].
49 Id. at 719-720, citing People v.
Silvano, 403 Phil. 598, 606 (2001) [Per J. De Leon, Jr., Second
Division]; People v. Plaza, 403 Phil. 347, 357 (2001) [Per J.
Quisumbing, Second Division]; Roca v. Court of Appeals, 403
Phil. 326, 335 (2001) [Per J. Quisumbing, Second Division].
50 People v. Eduarte, 265 Phil. 304, 309 (I 990)
[Per J. Guttierez, Jr., Third Division].
51 People v. Caratao, 451 Phil. 588, 602 (2003) [Per
J. Azcuna, First Division], citing People v. Saure, 428 Phil.
916, 928 (2002) [Per J. Puno, First Division]; and People v. Enfectana,
et al., 431 Phil. 64, 77 (2002) [Per J. Quisumbing, Second Division].
52 People v. Obordo, 431 Phil. 691, 712 (2002) [Per
J. Kapunan, First Division], citing People vs. Encomienda, 150-B
Phil. 419, 433 (I 972) [Per J. Makasiar, First Division].
53 People v. Encomienda, 150-B Phil. 419, 433--434
(1972), citing People vs. Lara, 48 Phil. 153, 159 (1925) [Per
J. Street, En Banc]; People vs. Paras, 9 Phil. 367, 370 (1907)
[Per J. Makasiar, First Division].
54 158 Phil. 827(1974) [Per J. Munoz-Palma, First Division].
55 Id. at 845.
56 Rollo, p. 196. Memorandum.
57 Id. at 27.
58 Id. at 196.
59 Id.
60 Id. at 34-37.
61 Id. at 34.
62 Id. at 34-37.
63 Id. at 37-38.
64 Id.
65 People v. Alolod, 334 Phil. 135, 141 (1997) [Per J.
Bellosillo, First Division].
66 People v. Rabosa, 339 Phil. 339, 346 (1997) [Per
J. Kapunan, First Division], citing People 10 Phil. 269, 286 (1995)
[Per J. Regalado, Second Divisio
XFIRST DIVISION
G.R. No. 148431 July 28,
2005
SPO2 RUPERTO CABANLIG, Petitioners,
vs.
SANDIGANBAYAN and OFFICE OF THE SPECIAL
PROSECUTOR, Respondents.
D E C I S I O N
CARPIO, J.:
The Case
This petition for review1 seeks to reverse the Decision2 of the Fifth Division of the Sandiganbayan dated 11 May 1999
and Resolution3 dated 2 May 2001 affirming the conviction of SPO2 Ruperto
Cabanlig ("Cabanlig") in Criminal Case No. 19436 for homicide. The
Sandiganbayan sentenced Cabanlig to suffer the indeterminate penalty of four
months of arresto mayor as minimum to two years and four
months of prision correctional as maximum and to pay ₱50,000
to the heirs of Jimmy Valino ("Valino"). Cabanlig shot Valino after
Valino grabbed the M16 Armalite of another policeman and tried to escape from
the custody of the police. The Sandiganbayan acquitted Cabanlig’s co-accused,
SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis
("Abesamis"), SPO2 Lucio Mercado ("Mercado") and SPO1 Rady
Esteban ("Esteban").
The Charge
Cabanlig,
Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended
information that reads as follows:
That on or about September 28, 1992, in the Municipality of
Penaranda, Province of Nueva Ecija, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1
Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1
Rady S. Esteban, all public officers being members of the Philippine National
Police, conspiring and confederating and mutually helping one another, with
intent to kill, with treachery and evident premeditation, taking advantage of
nighttime and uninhabited place to facilitate the execution of the crime, with
use of firearms and without justifiable cause, did then and there, wilfully,
unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting
him several times at the vital parts of his body, thereby inflicting upon the
latter, serious and mortal wounds which were the direct and immediate cause of
his death, which crime was committed by the accused in relation to their office
as members of the Philippine National Police of Penaranda, Nueva Ecija, the
deceased, who was then detained for robbery and under the custody of the
accused, having been killed while being taken to the place where he allegedly
concealed the effects of the crime, to the damage and prejudice of the
heirs of said victim, in such amount as may be awarded under the provisions of
the New Civil Code.
CONTRARY TO LAW.4
Arraignment and Plea
On 15 December 1993, the accused police officers Cabanlig, Padilla,
Abesamis, Mercado and Esteban pleaded not guilty.
Version of the Prosecution
On 24 September 1992 a robbery occurred in the Municipality of
Penaranda, Nueva Ecija. Four days later or on 28 September 1992, the
investigating authorities apprehended three suspects: Jordan Magat
("Magat"), Randy Reyes ("Reyes") and Valino. The police
recovered most of the stolen items. However, a flower vase and a small radio
were still missing. Cabanlig asked the three suspects where these two items
were. Reyes replied that the items were at his house.
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and
Esteban, to accompany him in retrieving the flower vase and radio. Cabanlig
then brought out Reyes and Magat from their cell, intending to bring the two
during the retrieval operation. It was at this point that Valino informed
Cabanlig that he had moved the vase and radio to another location without the
knowledge of his two cohorts. Cabanlig decided instead to bring along Valino,
leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform – Cabanlig,
Padilla, Mercado, Abesamis and Esteban – escorted Valino to Barangay Sinasahan,
Nueva Ecija to recover the missing flower vase and radio. The policemen and
Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep was built
like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal
covering separated the driver’s compartment and main body of the jeep. There
was no opening or door between the two compartments of the jeep. Inside the
main body of the jeep, were two long benches, each of which was located at the
left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the
main body of the jeep. Esteban was right behind Abesamis at the left bench.
Valino, who was not handcuffed, was between Cabanlig and Mercado at the right
bench. Valino was seated at Cabanlig’s left and at Mercado’s right. Mercado was
seated nearest to the opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway
bridge and while the jeep was slowly negotiating a bumpy and potholed road,
Valino suddenly grabbed Mercado’s M16 Armalite and jumped out of the jeep.
Valino was able to grab Mercado’s M16 Armalite when Mercado scratched his head
and tried to reach his back because some flying insects were pestering Mercado.
Mercado shouted "hoy!" when Valino suddenly took the M16
Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valino’s
act of taking away the M16 Armalite. Cabanlig acted immediately. Without
issuing any warning of any sort, and with still one foot on the running board,
Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig
fired four more successive shots. Valino did not fire any shot.
The shooting happened around 7:00 p.m., at dusk or "nag-aagaw
ang dilim at liwanag." Cabanlig approached Valino’s body to check its
pulse. Finding none, Cabanlig declared Valino dead. Valino sustained three
mortal wounds – one at the back of the head, one at the left side of the chest,
and one at the left lower back. Padilla and Esteban remained with the body. The
other three policemen, including Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo
Lacanilao ("Lacanilao") of the Cabanatuan Police went to Barangay
Sinasahan, Nueva Ecija to investigate a case. Lacanilao met Mercado who gave
him instructions on how to settle the case that he was handling. During their
conversation, Mercado related that he and his fellow policemen
"salvaged" (summarily executed) a person the night before. Lacanilao
asked who was "salvaged." Mercado answered that it was "Jimmy
Valino." Mercado then asked Lacanilao why he was interested in the
identity of the person who was "salvaged." Lacanilao then answered
that "Jimmy Valino" was his cousin. Mercado immediately turned around
and left.
Version of the Defense
Cabanlig admitted shooting Valino. However, Cabanlig justified the
shooting as an act of self-defense and performance of duty. Mercado denied that
he told Lacanilao that he and his co-accused "salvaged" Valino.
Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to
kill Valino.
The
Sandiganbayan’s Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban
as the court found no evidence that the policemen conspired to kill or
summarily execute Valino. Since Cabanlig admitted shooting Valino, the burden
is on Cabanlig to establish the presence of any circumstance that would relieve
him of responsibility or mitigate the offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense
or defense of a stranger. The only defense that Cabanlig could properly invoke
in this case is fulfillment of duty. Cabanlig, however, failed to show that the
shooting of Valino was the necessary consequence of the due performance of
duty. The Sandiganbayan pointed out that while it was the duty of the policemen
to stop the escaping detainee, Cabanlig exceeded the proper bounds of
performing this duty when he shot Valino without warning.
The Sandiganbayan found no circumstance that would qualify the
crime to murder. Thus, the Sandiganbayan convicted Cabanlig only of homicide.
The dispositive portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA,
MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are
hereby ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION CABANLIG is
found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby
sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS of arresto
mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional,
as maximum. He is further ordered to pay the heirs of Jimmy Valino the amount
of FIFTY THOUSAND (₱50,000.00) PESOS, and the costs.
SO ORDERED.5
On motion for reconsideration, Associate Justice Anacleto D. Badoy
Jr. ("Associate Justice Badoy") dissented from the decision.
Associate Justice Badoy pointed out that there was imminent danger on the lives
of the policemen when Valino grabbed the "infallible Armalite"6 from Mercado and jumped out from the rear of the jeep. At a
distance of only three feet from Cabanlig, Valino could have sprayed the
policemen with bullets. The firing of a warning shot from Cabanlig was no
longer necessary. Associate Justice Badoy thus argued for Cabanlig’s acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision.7 The dispositive portion of the Resolution reads:
WHEREFORE, for lack of merit, the motion for reconsideration is
hereby DENIED.8
The Issues
Cabanlig raises the following issues in his Memorandum:
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF
FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT
INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER
IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF ₱ 50,000 TO THE HEIRS OF
VALINO9
The Court’s Ruling
The petition has merit. We rule for Cabanlig’s acquittal.
Applicable Defense is
Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or
more justifying circumstances. While there is nothing in the law that prevents
an accused from invoking the justifying circumstances or defenses in his favor,
it is still up to the court to determine which justifying circumstance is
applicable to the circumstances of a particular case.
Self-defense and fulfillment of duty operate on different
principles.10 Self-defense is based on the principle of self-preservation
from mortal harm, while fulfillment of duty is premised on the due performance
of duty. The difference between the two justifying circumstances is clear, as
the requisites of self-defense and fulfillment of duty are different.
The elements of self-defense are as follows:
a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent or repel
it;
c) Lack of sufficient provocation on the part of the person
defending himself.11
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the lawful
exercise of a right or office;
2. The injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such right
or office.12
A policeman in the performance of duty is justified in using such
force as is reasonably necessary to secure and detain the offender, overcome
his resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm.13 In case injury or death results from the policeman’s exercise
of such force, the policeman could be justified in inflicting the injury or
causing the death of the offender if the policeman had used necessary force.
Since a policeman’s duty requires him to overcome the offender, the force
exerted by the policeman may therefore differ from that which ordinarily may be
offered in self-defense.14 However, a policeman is never justified in using unnecessary
force or in treating the offender with wanton violence, or in resorting to
dangerous means when the arrest could be affected otherwise.15
Unlike in self-defense where unlawful aggression is an element, in
performance of duty, unlawful aggression from the victim is not a requisite.
In People v. Delima,16 a policeman was looking for a fugitive who had several days
earlier escaped from prison. When the policeman found the fugitive, the
fugitive was armed with a pointed piece of bamboo in the shape of a lance. The
policeman demanded the surrender of the fugitive. The fugitive lunged at the
policeman with his bamboo lance. The policeman dodged the lance and fired his
revolver at the fugitive. The policeman missed. The fugitive ran away still
holding the bamboo lance. The policeman pursued the fugitive and again fired
his revolver, hitting and killing the fugitive. The Court acquitted the
policeman on the ground that the killing was done in the fulfillment of duty.
The fugitive’s unlawful aggression in People v. Delima had already
ceased when the policeman killed him. The fugitive was running away from the
policeman when he was shot. If the policeman were a private person, not in the
performance of duty, there would be no self-defense because there would be no
unlawful aggression on the part of the deceased.17 It may even appear that the public officer acting in the
fulfillment of duty is the aggressor, but his aggression is not unlawful, it
being necessary to fulfill his duty.18
While self-defense and performance of duty are two distinct
justifying circumstances, self-defense or defense of a stranger may still be
relevant even if the proper justifying circumstance in a given case is
fulfillment of duty. For example, a policeman’s use of what appears to be
excessive force could be justified if there was imminent danger to the
policeman’s life or to that of a stranger. If the policeman used force to
protect his life or that of a stranger, then the defense of fulfillment of duty
would be complete, the second requisite being present.
In People v. Lagata,19 a jail guard shot to death a prisoner whom he thought was
attempting to escape. The Court convicted the jail guard of homicide because
the facts showed that the prisoner was not at all trying to escape. The Court
declared that the jail guard could only fire at the prisoner in self-defense or if absolutely necessary to avoid the prisoner’s
escape.
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were
in the performance of duty as policemen when they escorted Valino, an arrested
robber, to retrieve some stolen items. We uphold the finding of the
Sandiganbayan that there is no evidence that the policemen conspired to kill or
summarily execute Valino. In fact, it was not Valino who was supposed to go
with the policemen in the retrieval operations but his two other cohorts, Magat
and Reyes. Had the policemen staged the escape to justify the killing of
Valino, the M16 Armalite taken by Valino would not have been loaded with
bullets.20 Moreover, the alleged summary execution of Valino must be
based on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of
their duty when Cabanlig shot Valino. Thus, fulfillment of duty is the
justifying circumstance that is applicable to this case. To determine if this
defense is complete, we have to examine if Cabanlig used necessary force to
prevent Valino from escaping and in protecting himself and his co-accused
policemen from imminent danger.
Fulfillment of Duty was
Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of
fulfillment of duty was found to be incomplete. The Sandiganbayan believed that
Cabanlig "exceeded the fulfillment of his duty when he immediately shot
Valino without issuing a warning so that the latter would stop."21
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon
than the bamboo lance that the fugitive had run away with in People v. Delima. The policeman
in People v. Delima was
held to have been justified in shooting to death the escaping fugitive because
the policeman was merely performing his duty.
In this case, Valino was committing an offense in the presence of
the policemen when Valino grabbed the M16 Armalite from Mercado and jumped from
the jeep to escape. The policemen would have been justified in shooting Valino
if the use of force was absolutely necessary to prevent his escape.22 But Valino was not only an escaping detainee. Valino had also
stolen the M16 Armalite of a policeman. The policemen had the duty not only to
recapture Valino but also to recover the loose firearm. By grabbing Mercado’s
M16 Armalite, which is a formidable firearm, Valino had placed the lives of the
policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen
would have been sitting ducks. All of the policemen were still inside the jeep
when Valino suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban
were hemmed in inside the main body of the jeep, in the direct line of fire had
Valino used the M16 Armalite. There would have been no way for Cabanlig,
Mercado and Esteban to secure their safety, as there were no doors on the sides
of the jeep. The only way out of the jeep was from its rear from which Valino
had jumped. Abesamis and Padilla who were in the driver’s compartment were not
aware that Valino had grabbed Mercado’s M16 Armalite. Abesamis and Padilla
would have been unprepared for Valino’s attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police
guard, Valino certainly did not intend merely to escape and run away as far and
fast as possible from the policemen. Valino did not have to grab the M16
Armalite if his sole intention was only to flee from the policemen. If he had
no intention to engage the policemen in a firefight, Valino could simply have
jumped from the jeep without grabbing the M16 Armalite. Valino’s chances of
escaping unhurt would have been far better had he not grabbed the M16 Armalite
which only provoked the policemen to recapture him and recover the M16 Armalite
with greater vigor. Valino’s act of grabbing the M16 Armalite clearly showed a
hostile intention and even constituted unlawful aggression.
Facing imminent danger, the policemen had to act swiftly. Time was
of the essence. It would have been foolhardy for the policemen to assume that
Valino grabbed the M16 Armalite merely as a souvenir of a successful escape. As
we have pointed out in Pomoy v.
People23:
Again, it was in the lawful performance of his duty as a law
enforcer that petitioner tried to defend his possession of the weapon when the
victim suddenly tried to remove it from his holster. As an enforcer of the law,
petitioner was duty-bound to prevent the snatching of his service weapon by
anyone, especially by a detained person in his custody. Such weapon was likely
to be used to facilitate escape and to kill or maim persons in the vicinity,
including petitioner himself.
The Sandiganbayan, however, ruled that despite Valino’s possession
of a deadly firearm, Cabanlig had no right to shoot Valino without giving
Valino the opportunity to surrender. The Sandiganbayan pointed out that under
the General Rules of Engagement, the use of force should be applied only as a
last resort when all other peaceful and non-violent means have been exhausted.
The Sandiganbayan held that only such necessary and reasonable force should be
applied as would be sufficient to conduct self-defense of a stranger, to subdue
the clear and imminent danger posed, or to overcome resistance put up by an
offender.
The Sandiganbayan had very good reasons in steadfastly adhering to
the policy that a law enforcer must first issue a warning before he could use
force against an offender. A law enforcer’s overzealous performance of his duty
could violate the rights of a citizen and worse cost the citizen’s life. We
have always maintained that the judgment and discretion of public officers, in
the performance of their duties, must be exercised neither capriciously nor
oppressively, but within the limits of the law.24 The issuance of a warning before a law enforcer could use
force would prevent unnecessary bloodshed. Thus, whenever possible, a law
enforcer should employ force only as a last resort and only after issuing a
warning.
However, the duty to issue a warning is not absolutely mandated at
all times and at all cost, to the detriment of the life of law enforcers. The
directive to issue a warning contemplates a situation where several options are
still available to the law enforcers. In exceptional circumstances such as this
case, where the threat to the life of a law enforcer is already imminent, and
there is no other option but to use force to subdue the offender, the law
enforcer’s failure to issue a warning is excusable.
In this case, the embattled policemen did not have the luxury of
time. Neither did they have much choice. Cabanlig’s shooting of Valino was an
immediate and spontaneous reaction to imminent danger. The weapon grabbed by
Valino was not just any firearm. It was an M16 Armalite.
The M16 Armalite is an assault rifle adopted by the United Sates
("US") Army as a standard weapon in 1967 during the Vietnam War.25 The M16 Armalite is still a general-issue rifle with the US
Armed Forces and US law enforcement agencies.26 The M16 Armalite has both semiautomatic and automatic
capabilities.27 It is 39 inches long, has a 30-round magazine and fires
high-velocity .223-inch (5.56-mm) bullets.28 The M16 Armalite is most effective at a range of 200 meters29 but its maximum effective range could extend as far as 400
meters.30 As a high velocity firearm, the M16 Armalite could be fired
at close range rapidly or with much volume of fire.31 These features make the M16 Armalite and its variants well
suited for urban and jungle warfare.32
The M16 Armalite whether on automatic or semiautomatic setting is a
lethal weapon. This high-powered firearm was in the hands of an escaping
detainee, who had sprung a surprise on his police escorts bottled inside the
jeep. A warning from the policemen would have been pointless and would have
cost them their lives.
For what is the purpose of a warning? A warning is issued when policemen
have to identify themselves as such and to give opportunity to an offender to
surrender. A warning in this case was dispensable. Valino knew that he was in
the custody of policemen. Valino was also very well aware that even the mere
act of escaping could injure or kill him. The policemen were fully armed and
they could use force to recapture him. By grabbing the M16 Armalite of his
police escort, Valino assumed the consequences of his brazen and determined
act. Surrendering was clearly far from Valino’s mind.
At any rate, Valino was amply warned. Mercado shouted "hoy"
when Valino grabbed the M16 Armalite. Although Cabanlig admitted that he did
not hear Mercado shout "hoy", Mercado’s shout should have
served as a warning to Valino. The verbal warning need not come from Cabanlig
himself.
The records also show that Cabanlig first fired one shot. After a
few seconds, Cabanlig fired four more shots. Cabanlig had to shoot Valino
because Valino at one point was facing the police officers. The exigency of the
situation warranted a quick response from the policemen.
According to the Sandiganbayan, Valino was not turning around to
shoot because two of the three gunshot wounds were on Valino’s back. Indeed,
two of the three gunshot wounds were on Valino’s back: one at the back of the
head and the other at the left lower back. The Sandiganbayan, however,
overlooked the location of the third gunshot wound. It was three inches below
the left clavicle or on the left top most part of the chest area based on the
Medico Legal Sketch showing the entrances and exits of the three gunshot
wounds.33
The Autopsy Report34 confirms the location of the gunshot wounds, as follows:
GUNSHOT WOUNDS – modified by embalming.
1. ENTRANCE – ovaloid, 1.6 x 1.5 cms; with area of tattooing around
the entrance, 4.0 x 3.0 cms.; located at the right postauricular region, 5.5
cms. behind and 1.5 cms. above the right external auditory meatus, directed
forward downward fracturing the occipital bone, lacerating the right occipital
portion of the brain and fracturing the right cheek bone and making an EXIT
wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in
front of right external auditory meatus.
2. ENTRANCE – ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5
cms. from the anterior median line, 136.5 cms. from the left heel directed
backward, downward and to the right, involving soft tissues, fracturing the 3rd
rib, left, lacerating the left upper lobe and the right lower lobe and finally
making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from
the posterior median line and 132.0 cms. from the right heel and grazing the
medial aspect of the right arm.
3. ENTRANCE – ovaloid, 0.6 x 0.5 located at the back, left side,
9.0 cms. from the posterior median line; 119.5 cms. from the left heel;
directed forward, downward involving the soft tissues, lacerating the liver;
and bullet was recovered on the right anterior chest wall, 9.0 cms. form the
anterior median line, 112.0 cms. from the right heel.
The Necropsy Report35 also reveals the following:
1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at
the left side of the back of the head. The left parietal bone is fractured. The
left temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms
in size is located at the left temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about
three inches below the left clavicle. The wound is directed medially and made
an exit wound at the right axilla measuring 2 X 2 cms in size.
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left
lower back above the left lumbar. The left lung is collapsed and the liver is
lacerated. Particles of lead [were] recovered in the liver tissues. No wound of
exit.
Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head
The doctors who testified on the Autopsy36 and Necropsy37 Reports admitted that they could not determine which of the
three gunshot wounds was first inflicted. However, we cannot disregard the
significance of the gunshot wound on Valino’s chest. Valino could not have been
hit on the chest if he were not at one point facing the policemen.
If the first shot were on the back of Valino’s head, Valino would
have immediately fallen to the ground as the bullet from Cabanlig’s M16
Armalite almost shattered Valino’s skull. It would have been impossible for
Valino to still turn and face the policemen in such a way that Cabanlig could still
shoot Valino on the chest if the first shot was on the back of Valino’s head.
The most probable and logical scenario: Valino was somewhat facing
the policemen when he was shot, hence, the entry wound on Valino’s chest. On
being hit, Valino could have turned to his left almost falling, when two more
bullets felled Valino. The two bullets then hit Valino on his lower left back
and on the left side of the back of his head, in what sequence, we could not
speculate on. At the very least, the gunshot wound on Valino’s chest should
have raised doubt in Cabanlig’s favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig,
Padilla, Abesamis, Mercado and Esteban are guilty only of gross negligence. The
policemen transported Valino, an arrested robber, to a retrieval operation
without handcuffing Valino. That no handcuffs were available in the police
precinct is a very flimsy excuse. The policemen should have tightly bound
Valino’s hands with rope or some other sturdy material. Valino’s cooperative
demeanor should not have lulled the policemen to complacency. As it turned out,
Valino was merely keeping up the appearance of good behavior as a prelude to a
planned escape. We therefore recommend the filing of an administrative case
against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.
WHEREFORE, we REVERSE the
decision of the Sandiganbayan in Criminal Case No. 19436 convicting accused
RUPERTO CONCEPCION CABANLIG of the crime of homicide.
We ACQUIT RUPERTO
CONCEPCION CABANLIG of the crime of homicide
and ORDER his
immediate release from prison, unless there are other lawful grounds to hold
him. We DIRECT the
Director of Prisons to report to this Court compliance within five (5) days
from receipt of this Decision. No costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is
hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
HILARIO G. DAVIDE, JR.
Chief Justice
Footnotes
1 Under Rule 45 of the Rules of Court.
2 Penned by Associate Justice Minita V. Chico-Nazario with
Associate Justices Anacleto D. Badoy, Jr. and Ma. Cristina Cortez-Estrada,
concurring.
3 Penned by Associate Justice Minita V. Chico-Nazario with
Associate Justices Ma. Cristina Cortez-Estrada, Raoul V. Victorino, Nicodemo T.
Ferrer, concurring. Associate Justice Anacleto D. Badoy, Jr. dissented.
4 Records, pp. 29-30.
5 Rollo, p. 56.
6 Ibid., p. 90.
7 See note 3.
8 Rollo, p. 84.
9 Ibid., p. 161.
10 LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK
ONE, p. 202.
11 Paragraph 1, Article 11 of the Revised Penal Code.
12 People v. Oanis, 74 Phil. 257 (1943).
13 Ibid..
14 RAMON C. AQUINO AND CAROLINA C. GRIÑO-AQUINO, THE REVISED
PENAL CODE, 1997 ED., VOL. I, p. 205, citing United States v. Mojica, 42 Phil.
784 (1922).
15 Supra note 12.
16 46 Phil. 738 (1922).
17 LUIS B. REYES, THE REVISED PENAL CODE, supra note
10, p. 203.
18 Ibid., p. 202.
19 83 Phil. 150 (1949).
20 TSN, 11 July 1996, p. 21.
21 Rollo, p. 47.
22 LUIS B. REYES, THE REVISED PENAL CODE, supra note
10, p. 198.
23 G.R. No. 150647, 29 September 2004, 439 SCRA 439.
24 Calderon v. People and Court of Appeals, 96 Phil. 216 (1954).
25 http://concise.britannica.com/ebc/article?tocId=9370808, 19
May 2005.
26 http://world.guns.ru/assault/as18-e.htm, 19 May 2005.
27 http://concise.britannica.com/ebc/article?tocdI=9370808, 19 May 2005.
28 Ibid.
29 http://www.olive-drab.com/od_other_firearms_rifle_m16.php3,
19 May 2005.
30 http://world.guns.ru/assault/as18-e.htm, 19 May 2005.
31 http://www.answer.com, 19 May 2005.
32 Ibid.
33 Exhibit "B-1."
34 Exhibit "A."
35 Exhibit "B."
36 Testimony of Dr. Dominic L. Aguda, TSN, 28 July 1994, p. 26.
37 Testimony of Dr. Marcelo H. Gallardo Jr., TSN, 27 July 1994,
pp. 19-20.
The Lawphil Project - Arellano Law Foundation
G.R. No. 148431 - SPO2
Ruperto Cabanlig, Petitioner,
vs.
Sandiganbayan and Office of the Special Prosecutor, Respondents.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
Cabanlig was convicted of homicide based on the findings of the
Sandiganbayan that he exceeded his duty when he shot Valino without warning.1 Since Cabanlig saw Valino grab Mercado’s armalite rifle, the
Sandiganbayan ruled that he had no right to shoot Valino without giving him the
opportunity to surrender.2 Citing the General Rules of Engagement of the PNP, the
Sandiganbayan held that force and firearms shall be used as a last resort, and
only when necessary and reasonable to subdue or overcome the clear and imminent
danger posed, or the resistance being put up by the malefactor.3 It disregarded Cabanlig’s claim that Valino was turning
around when shot as it was not in accordance with the wounds suffered by
Valino.4 It also found that Valino was shot at close range, not more
than three feet, because of the tattooing around the entrance of the gunshot
wound on the head.5
The ponencia however, finds that Cabanlig was
justified in killing Valino because he placed the lives of the policemen in
grave danger when he grabbed the armalite rifle of Mercado.6 It declares that the policemen would have been sitting ducks
inside the jeep had Cabanlig not immediately shot Valino.7 Cabanlig was reacting to imminent danger8 and a warning from him would have been pointless and would
have cost their lives.9 It points out the Valino was sufficiently warned when Mercado
shouted "hoy" when his rifle was grabbed.10 Also, Cabanlig fired one shot first followed by four more.11 The ponencia declares that at one point
Valino was facing the police officers,12 as shown by the location of his chest wound,13 thus warranting a quick response.
With due respect, we cannot subscribe to the conclusion that the
policemen would have been "sitting ducks" or easy targets if Cabanlig
did not immediately gun down Valino. It is well to note that Valino who was a
suspected robber was being escorted by five heavily armed
policemen on their way to retrieve the stolen items consisting of a
flower vase and a clock. Three of the policemen were armed with M-16
rifles while two were equipped with .38 pistols.14
The conclusion that warning Valino would cost the lives of the
policemen lacks basis and purely speculative. There were five police officers
guarding Valino and four of them were armed with high powered guns. The five
policemen were up against a lone malefactor who was not even shown to be adept
in handling an M-16 armalite rifle. Besides, Cabanlig was aware when Valino
grabbed Mercado’s rifle. He was thus prepared to repel or overcome any threat
posed by Valino. As the records show, Valino ran away from the vehicle after he
grabbed the armalite rifle. There was no evidence that it was aimed at the
police officers hence there is no imminent danger to speak of.
We take exception to the claim that Valino faced the police
officers during the encounter. Dr. Marcelo Gallardo, Jr. testified that the
chest wound did not indicate that Valino faced the police officers during the
shooting. On the contrary, he said that the assailant was either at the back or
the side of the victim, thus:
PROS. TABANGUIL
Q. Doctor, in your findings there are three (3) gunshots wound,
numbered 1, 2 and 3, is that correct?
A. Yes, sir.
Q. Now, we go to gunshot wound no. 1. "Gunshot Wound,
entrance, 0.5 cm x 1.5 cms in size, located at the left side of the back of the
head. The left parietal bone is fractured. The left temporal bone is also
fractured. A wound of exit measuring 2 cms x 3 cms in size is located at the
left temporal aspect of the head." Now, will you demonstrate to the
Honorable court where is this wound located?
A. The wound of entrance is located at the top of the head. In this
part of the head.
PJ GARCHITORENA
Witness is indicating a position above his left temple of his
forehead.
PROS TABANGUIL
Q: In that wound, will you please tell the Honorable Court the
position of the assailant in relation to the victim?
A: The assailant must be at the back of the victim in order to
produce the entrance at the back of the head, sir.
Q: Would you consider that wound a fatal wound?
A: Yes, sir.
Q: Now, Gunshot Wound No. 2: entrance 0.5 cm in diameter, located
at the left side of the chest about three inches below the left clavicle. The
wound is directed medially and made an exit wound at the right axilla measuring
2x2 cms in size." Will you demonstrate to the Court the location of this
wound, the entrance and the exit?
A: The wound of entrance is located here below the clavicle then
made an exit wound on his right side, right axilla.
PROS TABAGUIL
Witness demonstrating using his body as a demonstration, your
Honor.
Q: Now, in this wound, what would be the position of the assailant
in relation to the victim?
A: The assailant must be on the left side of the victim in order to
produce that wound, sir.
PJ GARCHITORENA
Q: Before it exit is that the front part of the armpit or the rare
part of the armpit?
A: In the middle, sir.
Q: But the way you are pointing it, it seems to be closer to the
chest rather than the shoulder?
A: It is a little bet front of the oxilla, your Honor.
PROS TABANGUIL
Q: So in that case the assailant must be a little bet backward to
the victim?
A: No, on the lateral side.
Q: "Gunshot Wound No. 3, entrance, 0.5 cm in diameter located
at the left lower back above the left lumbar. The left lung is collapsed and
the liver is lacerated. Particles of lead was recovered in the liver tissues.
No wound of exit." Will you demonstrate to this Honorable Court where is
that wound?
...
PROS TABANGUIL
Q: In the case of this wound no. 3, what would be the position of
the assailant to the victim?
A: The assailant must have been at the left side but a little bit
at the back.
Q. Now, these wounds, 2 and 3, would you consider these wounds a
fatal wound?
A: Yes, sir.15
...
ATTY. JACOBA
Q: You stated also Doctor, that the possible position of the
assailant as regards gunshot wound no. 1 was behind the victim a little to the
left, is that correct?
A: No, I did not say that it was a little to the left. Its just at
the back.16
We concede that the police officers were in danger after Valino
grabbed the rifle although the same was not imminent. It
appears that Valino was running away from the jeep and there is no proof that
he, even at one point, faced the police officers and aimed his rifle towards
them. Even Cabanlig testified that:
Q: When you fired the first shot, what was the position of Jimmy
Baleno?
A: He was running away from us, sir and he was in a position of
about to rotate "umikot".
JUSTICE SANDOVAL:
Q: What do you mean by "umikot"?
A: He would be turning towards my direction, sir.
Q: But he was not able to face you, is that correct?
A: Yes, sir.
PJ:
Q: Was he able to face you?
A: No, sir.17
SPO2 Mendoza’s testimony that he warned Valino by shouting "hoy"
deserves no consideration. Assuming that it was uttered, there is no proof that
it was heard by Valino. It appears that it was more of a reflex reaction from
Mendoza when his rifle was grabbed rather than a warning issued to Valino.
The testimony of Mendoza is incredible, if not absurd to pretend to
be unaware of what transpired after his gun was allegedly taken by Valino, or
that there appears to be no struggle between him and Valino when the latter
attempted to grab his weapon. As a police officer, Mendoza offered no
resistance when Valino stole his gun. Thus:
Atty. Jacoba:
Q: But when Jimmy Valino grabbed your gun, was it with the left or
right hand?
A: I do not know which hand he used, sir.
Q: Do you remember if you were pushed by Jimmy Valino before
grabbing your gun?
A: No, sir.
Q: So Jimmy Valino was able to jump out of the vehicle with your
gun?
A: Yes, Your Honor.
Q: Did he point the gun towards your direction?
A: I did not notice, sir.
Q: Did you notice if Jimmy Valino was trying to cock the gun?
A: I did not notice, sir.
Q: Did you notice when Ruperto Cabanlig fired the first shot on
Jimmy Valino whether Jimmy Valino was facing the vehicle or his back was
towards the vehicle?
A: I did not notice whether he was facing us, sir.18
...
Q: Now, did you notice what was the position of Jimmy Valino when
he was first shot by Ruperto Cabanlig, was he running away from the jeep or was
he facing the jeep?
A: I do not know what his position, Your Honor.19
That Cabanlig first fired a shot followed by four more shots could
not be considered sufficient warning. The succession of the shots was a mere
one or two seconds thus giving no ample time for Valino to surrender. Besides,
as testified to by Cabanlig, he was giving no warning at all because the shots
were directly aimed at Valino.
ATTY. FAJARDO:
Q: Could you tell more details on that how this incident happened?
A: We had just crossed the PNR bridge, the road was in a very bad
way at that time, the driver was driving slowly and that is where he took the
gun away from Mercado and jumped out of the vehicle and that is the time I was
compelled to shoot him.
Q: How many shots did you fire?
A: Five (5) shots, sir.
Q: What weapon?
A: M-16, sir.
Q: The first five (5) shots that you fired where did you aim?
A: It was toward him, sir.
Q: And you were not sure whether you hit him or not or you do not
know where you hit him?
A: I am not sure exactly where I had hit him, sir but I got the
impression that he was turning around to shoot me (witness making a gesture as
if somebody is holding a firearm) so I fired some more shots at him.
JUSTICE SANDOVAL:
Q: What was the weapon grabbed by Baleno?
A: M-16, Your Honor.
Q: How about your other police companions what kind of weapons were
they carrying at that time?
A: Abesamis and Esteban were carrying 38 caliber, Mercado had an
M-16 rifle and the rest of us were carrying M-16. Your Honor.
ATTY. FAJARDO:
Q: You said that you fired several shots, how did you fire, did you
aim it to the victim?
A: Yes, sir the second shot was aimed at him, sir.
JUSTICE SANDOVAL:
Q: Why did you aim at him?
A: Because he had grabbed the weapon sir, and he could kill anyone
of us.20
The sequence of events adverted to by the ponencia is
not supported by the records. Since the examining physician could not even
determine which of the three wounds was inflicted first, there is no basis to
conclude that this is "the most probable and logical scenario" –
"Valino was somewhat facing the policemen when he was shot,
hence, the entry wound on Valino’s chest. On being hit, Valino could have
turned to his left almost falling, when two more bullets felled Valino. The two
bullets then hit Valino on his lower left back and on the left side of the back
of his head, in what sequence, we could not speculate on. At the very least,
the gunshot wound on Valino’s chest should have raised doubt in Cabanlig’s
favor."21
As Dr. Gallardo had testified:
ATTY. JACOBA
Q: Doctor, you are not in a position to state which of these wounds
were inflected first?
A: I am not sure, sir.
Q: In other words you cannot tell which wound was inflected first?
A: No sir.22
In Escara v. People,23 we declared that factual questions are not reviewable by the
Supreme Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Civil Procedure. There is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts. In appeals to this
Court from the Sandiganbayan only questions of law may be
raised, not issues of fact.
The issues raised by petitioner, to wit: whether or not he issued
warnings before shooting Valino and whether the latter was facing him when
shot, are issues of fact and not of law.
It is an established doctrine of long standing that factual
findings of the trial court on the credibility of witnesses are accorded great
weight and respect and will not be disturbed on appeal. The trial court is in a
unique position of having observed that elusive and incommunicable evidence of
the witnesses’ deportment on the stand while testifying, which opportunity is denied
to the appellate courts. Only the trial judge can observe the furtive glance,
blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh
or the scant or full realization of an oath – all of which are useful for an
accurate determination of a witness’ honesty and sincerity.24
In People v. Lagata,25 we held that:
While custodians of prisoners should take all care to avoid the
latter's escape, only absolute necessity would authorize them to fire against
them. Theirs is the burden of
proof as to such necessity. The summary liquidation of prisoners,
under flimsy pretexts of attempts of escape, which has been and is being
practiced in dictatorial systems of government, has always been and is shocking
to the universal conscience of humanity.
Human life is valuable, albeit, sacred. Cain has been the object of
unrelentless curse for centuries and millennia and his name will always be
remembered in shame as long as there are human generations able to read the
Genesis. Twenty centuries of Cristianity have not been enough to make less
imperative the admonition that "Thou shalt not kill," uttered by the
greatest pundit and prophet of Israel. Laws, constitutions, world charters have
been written to protect human life. Still it is imperative that all men be
imbued with the spirit of the Sermon on the Mount that the words of the gospels
be translated into reality, and that their meaning fill all horizons with the
eternal aroma of encyclic love of mankind. [Emphasis supplied]26
Cabanlig admitting killing Valino. Therefore, the burden of proving
that the killing was reasonable and necessary rests on him. To our mind,
Cabanlig failed to discharge this burden. He also failed to convincingly show
that there was a misapprehension of facts by the Sandiganbayan, hence, its
findings must be accorded respect and weight.
ACCORDINGLY, I vote to DISMISS the
petition and AFFIRM the
decision of the Sandiganbayan finding Cabanlig guilty of homicide.
CONSUELO YNARES-SANTIAGO
Associate Justice
Footnotes
1 Rollo, p. 47.
2 Id.
3 Id. at 48.
4 Id. at 49.
5 Id. at 51.
6 Draft Decision, p. 14.
7 Id. at 15.
8 Id. at 18.
9 Id. at 19.
10 Id.
11 Id.
12 Id.
13 Id. at 22.
14 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, p. 27.
15 TSN, Testimony of Dr. Gallardo, July 27, 1994, pp. 12-15.
16 Id. at 18.
17 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, p. 54.
18 TSN, Testimony of SPO2 Mercado, July 11, 1996, pp. 39-40.
19 Id. at 41.
20 TSN, Testimony of SPO2 Cabanlig, February 10, 1997, pp.
26-27.
21 Draft Decision, p. 22.
22 TSN, Testimony of Dr. Gallardo, July 27, 1994, pp. 19-20.
23 G.R. No. 164921, 6 July 2005.
24 Id.
25 83 Phil. 150 (1949).
26 Id. at 161.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EN BANC
G.R. No. 135981
January 15, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
MARIVIC GENOSA, appellant.
D E C I S I O N
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the "battered woman syndrome" (BWS),
which allegedly constitutes self-defense. Under the proven facts, however, she
is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband
at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete
or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on
appellant constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This "psychological
paralysis" she suffered diminished her will power, thereby entitling her
to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised
Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have naturally
produced passion and obfuscation. The acute battering she suffered that fatal
night in the hands of her batterer-spouse, in spite of the fact that she was
eight months pregnant with their child, overwhelmed her and put her in the
aforesaid emotional and mental state, which overcame her reason and impelled
her to vindicate her life and her unborn child's.
Considering the presence of these two mitigating circumstances
arising from BWS, as well as the benefits of the Indeterminate Sentence Law,
she may now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention during
the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998
Decision1 of the Regional Trial Court
(RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic
Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the
Decision reads:
"WHEREFORE, after all the foregoing being duly considered, the
Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable
doubt of the crime of Parricide as provided under Article 246 of the Revised
Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance, hereby
sentences the accused with the penalty of DEATH.
"The Court likewise penalizes the accused to pay the heirs of
the deceased the sum of fifty thousand pesos (P50,000.00), Philippine
currency as indemnity and another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages."2
The Information3 charged appellant with
parricide as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of
Isabel, Province of Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with treachery
and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband,
with the use of a hard deadly weapon, which the accused had provided herself
for the purpose, [causing] the following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem
lividity. Eyes protruding from its sockets and tongue slightly protrudes out of
the mouth.
'Fracture, open, depressed, circular located at the occipital bone
of the head, resulting [in] laceration of the brain, spontaneous rupture of the
blood vessels on the posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest,
trunk w/ shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."4
With the assistance of her counsel,5 appellant pleaded not
guilty during her arraignment on March 3, 1997.6 In due course, she was
tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the
prosecution's version of the facts in this wise:
"Appellant and Ben Genosa were united in marriage on November
19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their
house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife
lived with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with
their two children, namely: John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a
cockfight after receiving their salary. They each had two (2) bottles of beer
before heading home. Arturo would pass Ben's house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to
a store across it, waiting until 9:00 in the evening for the masiao runner
to place a bet. Arturo did not see appellant arrive but on his way home passing
the side of the Genosas' rented house, he heard her say 'I won't hesitate to
kill you' to which Ben replied 'Why kill me when I am innocent?' That was the
last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her
close friend and neighbor living about fifty (50) meters from her house, to
look after her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida
was waiting for a bus going to Ormoc when he saw appellant going out of their
house with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about fifty
(50) meters behind the Genosas' rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him
about the foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was locked
from the inside. Since he did not have a duplicate key with him, Steban
destroyed the gate padlock with a borrowed steel saw. He was able to get inside
through the kitchen door but only after destroying a window to reach a hook
that locked it. Alone, Steban went inside the unlocked bedroom where the
offensive smell was coming from. There, he saw the lifeless body of Ben lying
on his side on the bed covered with a blanket. He was only in his briefs with
injuries at the back of his head. Seeing this, Steban went out of the house and
sent word to the mother of Ben about his son's misfortune. Later that day,
Iluminada Genosa, the mother of Ben, identified the dead body as that of [her]
son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin,
then assigned at the police station at Isabel, Leyte, received a report
regarding the foul smell at the Genosas' rented house. Together with SPO1
Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where they found the dead body of Ben lying
on his side wrapped with a bedsheet. There was blood at the nape of Ben who
only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The
metal pipe measured three (3) feet and six (6) inches long with a diameter of
one and half (1 1/2) inches. It had an open end without a stop valve with a red
stain at one end. The bedroom was not in disarray.
"About 10:00 that same morning, the cadaver of Ben, because of
its stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence of the police.
A municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body was
already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant.
She concluded that the cause of Ben's death was 'cardiopulmonary arrest
secondary to severe intracranial hemorrhage due to a depressed fracture of the
occipital [bone].'
"Appellant admitted killing
Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for
Ben at the marketplace and taverns at Isabel, Leyte but did not find him there.
They found Ben drunk upon their return at the Genosas' house. Ecel went home
despite appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even
challenging her to a fight. She allegedly ignored him and instead attended to
their children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
the television antenna or wire to keep her from watching television. According
to appellant, Ben was about to attack her so she ran to the bedroom, but he got
hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes
because she wanted him to leave. Seeing his packed clothes upon his return
home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her 'You might as well be
killed so nobody would nag me.' Appellant testified that she was aware that
there was a gun inside the drawer but since Ben did not have the key to it, he
got a three-inch long blade cutter from his wallet. She however, 'smashed' the
arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant
then 'smashed' Ben at his nape with the pipe as he was about to pick up the
blade and his wallet. She thereafter ran inside the bedroom.
"Appellant, however, insisted that she ended the life of her
husband by shooting him. She supposedly 'distorted' the drawer where the gun
was and shot Ben. He did not die on the spot, though, but in the bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November
19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu
City, obtaining a degree of Bachelor of Science in Business Administration, and
was working, at the time of her husband's death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben, Earl
Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary
school; they were neighbors in Bilwang; they were classmates; and they were
third degree cousins. Both sets of parents were against their relationship, but
Ben was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of
Ben's parents, together with Ben's brother, Alex, in Isabel, Leyte. In the
first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon
thereafter, the couple would quarrel often and their fights would become
violent.
"4. Ben's brother, Alex, testified for the prosecution that he
could not remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in 1993 he
saw Marivic holding a kitchen knife after Ben had shouted for help as his left
hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Ben's forgiveness. In another incident in
May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid
again and saw blood from Ben's forehead and Marivic holding an empty bottle.
Ben and Marivic reconciled after Marivic had apparently again asked for Ben's
forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified
too, saying that Ben and Marivic married in '1986 or 1985 more or less here in
Fatima, Ormoc City.' She said as the marriage went along, Marivic became
'already very demanding. Mrs. Iluminada Genosa said that after the birth of
Marivic's two sons, there were 'three (3) misunderstandings.' The first was
when Marivic stabbed Ben with a table knife through his left arm; the second
incident was on November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was also affected. It
was wounded and also the ear' and her husband went to Ben to help; and the
third incident was in 1995 when the couple had already transferred to the house
in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar
clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on
November 15, 1995 'After we collected our salary, we went to the cock-fighting
place of ISCO.' They stayed there for three (3) hours, after which they went to
'Uniloks' and drank beer – allegedly only two (2) bottles each. After drinking
they bought barbeque and went to the Genosa residence. Marivic was not
there. He stayed a while talking with Ben, after which he went across the
road to wait 'for the runner and the usher of the masiao game because during
that time, the hearing on masiao numbers was rampant. I was waiting for the
ushers and runners so that I can place my bet.' On his way home at about 9:00
in the evening, he heard the Genosas arguing. They were quarreling loudly.
Outside their house was one 'Fredo' who is used by Ben to feed his fighting
cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by
him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied
'Why kill me when I am innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road
from the Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben 'before
when he was stricken with a bottle by Marivic Genosa' that he should leave her
and that Ben would always take her back after she would leave him 'so many
times'.
"Basobas could not remember when Marivic had hit Ben, but it
was a long time that they had been quarreling. He said Ben 'even had a wound'
on the right forehead. He had known the couple for only one (1) year.
"6. Marivic testified that after the first year of marriage,
Ben became cruel to her and was a habitual drinker. She said he provoked her,
he would slap her, sometimes he would pin her down on the bed, and sometimes
beat her.
"These incidents happened several times and she would often
run home to her parents, but Ben would follow her and seek her out, promising
to change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo. These doctors would enter the injuries inflicted upon her by Ben into
their reports. Marivic said Ben would beat her or quarrel with her every time
he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so
closely related to Marivic, testified as to the abuse and violence she received
at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the
Genosas, testified that on November 15, 1995, he overheard a quarrel between
Ben and Marivic. Marivic was shouting for help and through the open jalousies,
he saw the spouses 'grappling with each other'. Ben had Marivic in a choke
hold. He did not do anything, but had come voluntarily to testify. (Please
note this was the same night as that testified to by Arturo Busabos.8 )
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of
Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on
the night of November 15, 1995. He peeped through the window of his hut which
is located beside the Genosa house and saw 'the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the accused,
Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self
and enter the room of the children. After that, he went back to work as he was
to go fishing that evening. He returned at 8:00 the next morning. (Again,
please note that this was the same night as that testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas
while they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living together
for 13 or 14 years. He said the couple was always quarreling. Marivic confided
in him that Ben would pawn items and then would use the money to gamble. One
time, he went to their house and they were quarreling. Ben was so angry, but
would be pacified 'if somebody would come.' He testified that while Ben was
alive 'he used to gamble and when he became drunk, he would go to our house and
he will say, 'Teody' because that was what he used to call me, 'mokimas ta,'
which means 'let's go and look for a whore.' Mr. Sarabia further testified that
Ben 'would box his wife and I would see bruises and one time she ran to me, I
noticed a wound (the witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of
Marivic, testified that in the afternoon of November 15, 1995, Marivic went to
her house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa
house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband
was already there and was drunk.' Miss Arano knew he was drunk 'because of his
staggering walking and I can also detect his face.' Marivic entered the house
and she heard them quarrel noisily. (Again, please note that this is the same
night as that testified to by Arturo Basobas) Miss Arano testified that this
was not the first time Marivic had asked her to sleep in the house as Marivic
would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived
because the couple 'were very noisy in the sala and I had heard something was
broken like a vase.' She said Marivic ran into her room and they locked the
door. When Ben couldn't get in he got a chair and a knife and 'showed us the
knife through the window grill and he scared us.' She said that Marivic shouted
for help, but no one came. On cross-examination, she said that when she left
Marivic's house on November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic
were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many
times' and had also received treatment from other doctors. Dr. Caing testified
that from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.'
x x x x x x x x x
'Dr. Caing's clinical history of the tension headache and
hypertention of Marivic on twenty-three (23) separate occasions was
marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos
Clinic which reflected all the consultations made by Marivic and the six
(6) incidents of physical injuries reported was marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a
psychiatrist, he could not say whether the injuries were directly related to
the crime committed. He said it is only a psychiatrist who is qualified
to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the
Genosas resided, testified that about two (2) months before Ben died, Marivic
went to his office past 8:00 in the evening. She sought his help to settle or
confront the Genosa couple who were experiencing 'family troubles'. He told
Marivic to return in the morning, but he did not hear from her again and
assumed 'that they might have settled with each other or they might have
forgiven with each other.'
x x x x x x x x x
"Marivic said she did not provoke her husband when she got
home that night it was her husband who began the provocation. Marivic said she
was frightened that her husband would hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from eclampsia and hypertension, and
the baby was born prematurely on December 1, 1995.
"Marivic testified that during her marriage she had tried to
leave her husband at least five (5) times, but that Ben would always follow her
and they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because 'he was crazy about his recent
girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a
gun; she said that he died in the bedroom; that their quarrels could be heard
by anyone passing their house; that Basobas lied in his testimony; that she
left for Manila the next day, November 16, 1995; that she did not bother anyone
in Manila, rented herself a room, and got herself a job as a field researcher
under the alias 'Marvelous Isidro'; she did not tell anyone that she was
leaving Leyte, she just wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw
the gun away; that she did not know what happened to the pipe she used to
'smash him once'; that she was wounded by Ben on her wrist with the bolo; and
that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and
dragged her towards the drawer when he saw that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995
after an investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and some
defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal
Health Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases, such as
the examination of cadavers and the autopsy of cadavers. Dra. Cerillo
is not a forensic pathologist. She merely took the medical board exams and
passed in 1986. She was called by the police to go to the Genosa residence and
when she got there, she saw 'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semi-prone position with his back
to the door. He was wearing only a brief.
x x x x x x x x x
"Dra. Cerillo said that 'there is only one injury and that is
the injury involving the skeletal area of the head' which she described as a
'fracture'. And that based on her examination, Ben had been dead 2 or 3 days.
Dra. Cerillo did not testify as to what caused his death.
"Dra. Cerillo was not cross-examined by defense counsel.
"11. The Information, dated November 14, 1996, filed against
Marivic Genosa charged her with the crime of PARRICIDE committed 'with intent
to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully
and feloniously attack, assault, hit and wound x x x her legitimate husband,
with the use of a hard deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21
July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the
day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge,
RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond
reasonable doubt' of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon
automatic review and, under date of 24 January 2000, Marivic's trial lawyer,
Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching
thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by
her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon
and permitted the entry of appearance of undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a
letter dated 20 January 2000, to the Chief Justice, coursing the same through
Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records
Office, wherein she submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4
February 2000.
"16. In the meantime, under date of 17 February 2000, and
stamp-received by the Honorable Court on 19 February 2000, undersigned counsel
filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his death;
allow the examination of Marivic Genosa by qualified psychologists and
psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a
quo to take the testimony of said psychologists and psychiatrists.
"Attached to the URGENT
OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the
death wound (as culled from the post-mortem findings, Exhibit 'A') is more akin
to a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable
Court partly granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to
the trial court for the reception of expert psychological and/or psychiatric
opinion on the 'battered woman syndrome' plea, within ninety (90) days from
notice, and, thereafter to forthwith report to this Court the proceedings
taken, together with the copies of the TSN and relevant documentary evidence,
if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and
testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a
quo asked if she had interviewed Marivic Genosa. Dra. Dayan
informed the Court that interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological assessment were done at her
clinic.
"Dra. Dayan testified that she has been a clinical
psychologist for twenty (20) years with her own private clinic and connected
presently to the De La Salle University as a professor. Before this, she was
the Head of the Psychology Department of the Assumption College; a member of
the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College.
She has an AB in Psychology from the University of the Philippines, a Master of
Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the
U.P. She was the past president of the Psychological Association of the
Philippines and is a member of the American Psychological Association. She is
the secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member of the
ASEAN [Counseling] Association. She is actively involved with the Philippine
Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was
with the Davide Commission doing research about Military Psychology. She has
written a book entitled 'Energy Global Psychology' (together with Drs. Allan
Tan and Allan Bernardo). The Genosa case is the first time she has testified as
an expert on battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on
the socio-demographic and psychological profile of families involved in
domestic violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that 'there are lots of variables that
cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot
of incidents of psychological abuse, verbal abuse, and emotional abuse to
physical abuse and also sexual abuse.'
x x x x x x x x x
"Dra. Dayan testified that in her studies, 'the battered woman
usually has a very low opinion of herself. She has a self-defeating and
self-sacrificing characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen, they usually think that they
provoke it, that they were the one who precipitated the violence, they provoke
their spouse to be physically, verbally and even sexually abusive to them.'
Dra. Dayan said that usually a battered x x x comes from a dysfunctional family
or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the battered
woman, 'also has a very low opinion of himself. But then emerges to have
superiority complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling, drinking
and drugs. And they become violent.' The batterer also usually comes from a
dysfunctional family which over-pampers them and makes them feel entitled to do
anything. Also, they see often how their parents abused each other so 'there is
a lot of modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons why a
battered woman does not leave her husband: poverty, self-blame
and guilt that she provoked the violence, the cycle itself which makes her hope
her husband will change, the belief in her obligations to keep the family
intact at all costs for the sake of the children.
x x x x x x x x x
"Dra. Dayan said that abused wives react differently to the
violence: some leave the house, or lock themselves in another room, or
sometimes try to fight back triggering 'physical violence on both of them.' She
said that in a 'normal marital relationship,' abuses also happen, but these are
'not consistent, not chronic, are not happening day in [and] day out.' In an
'abnormal marital relationship,' the abuse occurs day in and day out, is long
lasting and 'even would cause hospitalization on the victim and even death on
the victim.'
x x x x x x x x x
"Dra. Dayan said that as a result of the battery of
psychological tests she administered, it was her opinion that Marivic fits the
profile of a battered woman because 'inspite of her feeling of self-confidence
which we can see at times there are really feeling (sic) of loss, such feelings
of humiliation which she sees herself as damaged and as a broken person. And at
the same time she still has the imprint of all the abuses that she had
experienced in the past.'
x x x x x x x x x
"Dra. Dayan said Marivic thought of herself as a loving wife
and did not even consider filing for nullity or legal separation inspite of the
abuses. It was at the time of the tragedy that Marivic then thought of herself
as a victim.
x x x x x x x x x
"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician,
who has since passed away, appeared and testified before RTC-Branch 35, Ormoc
City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of
Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the
Philippine Psychiatry Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private practice, he was connected
with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed
Forces of the Philippines, assigned to the V. Luna Medical Center for twenty
six (26) years. Prior to his retirement from government service, he obtained
the rank of Brigadier General. He obtained his medical degree from the
University of Santo Tomas. He was also a member of the World Association of
Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in
the Philippine Military Academy from the Period 1954 – 1978' which was
presented twice in international congresses. He also authored 'The Mental
Health of the Armed Forces of the Philippines 2000', which was likewise
published internationally and locally. He had a medical textbook published on
the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the
functional disorder of the mind and neurology deals with the ailment of the
brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor
degree and a doctorate degree; while one has to finish medicine to become a
specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical
Centre, Dr. Pajarillo had already encountered a suit involving violent family
relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten to
twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he
became a consultant of the Battered Woman Office in Quezon City under Atty.
Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of
severe domestic violence, where there is physical abuse: such as slapping,
pushing, verbal abuse, battering and boxing a woman even to an unconscious
state such that the woman is sometimes confined. The affliction of
Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode
of violence may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, 'it will take
more repetitive trauma to precipitate the post-traumatic stress disorder and
this x x x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is
incorporated under the 'anxiety neurosis or neurologic anxcietism.' It is
produced by 'overwhelming brutality, trauma.'
x x x x x x x x x
"Dr. Pajarillo explained that with 'neurotic anxiety', the
victim relives the beating or trauma as if it were real, although she is not
actually being beaten at that time. She thinks 'of nothing but the suffering.'
x x x x x x x x x
"A woman who suffers battery has a tendency to become
neurotic, her emotional tone is unstable, and she is irritable and restless.
She tends to become hard-headed and persistent. She has higher sensitivity and
her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background relates
to an individual's illness, such as the deprivation of the continuous care and
love of the parents. As to the batterer, he normally 'internalizes what is
around him within the environment.' And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so macho; he shows his
strong façade 'but in it there are doubts in himself and prone to act without
thinking.'
x x x x x x x x x
"Dr. Pajarillo emphasized that 'even though without the
presence of the precipator (sic) or the one who administered the battering,
that re-experiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.'
x x x x x x x x x
"Dr. Pajarillo said that a woman suffering post traumatic
stress disorder try to defend themselves, and 'primarily with knives. Usually
pointed weapons or any weapon that is available in the immediate surrounding or
in a hospital x x x because that abound in the household.' He said a victim
resorts to weapons when she has 'reached the lowest rock bottom of her life and
there is no other recourse left on her but to act decisively.'
x x x x x x x x x
"Dr. Pajarillo testified that he met Marivic Genosa in his
office in an interview he conducted for two (2) hours and seventeen (17)
minutes. He used the psychological evaluation and social case studies as a help
in forming his diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
x x x x x x x x x
"On cross-examination by the private prosecutor, Dr. Pajarillo
said that at the time she killed her husband Marivic'c mental condition was
that she was 're-experiencing the trauma.' He said 'that we are trying
to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point
in time that things happened when the re-experiencing of the trauma flashed in
her mind.' At the time he interviewed Marivic 'she was more subdued,
she was not super alert anymore x x x she is mentally stress (sic) because of
the predicament she is involved.'
x x x x x x x x x
"20. No rebuttal evidence or testimony was presented by either
the private or the public prosecutor. Thus, in accord with the Resolution of
this Honorable Court, the records of the partially re-opened trial a quo were
elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC
gave credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed him
with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to
this Court for automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion
praying that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at the
time she had killed her spouse; and (3) the inclusion of the said experts'
reports in the records of the case for purposes of the automatic review or, in
the alternative, a partial reopening of the case for the lower court to admit
the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in
part appellant's Motion, remanding the case to the trial court for the
reception of expert psychological and/or psychiatric opinion on the
"battered woman syndrome" plea; and requiring the lower court to
report thereafter to this Court the proceedings taken as well as to submit
copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on
domestic violence. Their testimonies, along with their documentary evidence,
were then presented to and admitted by the lower court before finally being
submitted to this Court to form part of the records of the case.12
The Issues
Appellant assigns the following alleged errors of the trial court
for this Court's consideration:
"1. The trial court gravely erred in promulgating an obviously
hasty decision without reflecting on the evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that
Ben and Marivic Genosa were legally married and that she was therefore liable
for parricide.
"3. The trial court gravely erred finding the cause of death
to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding
evidence adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
"5. The trial court gravely erred in not requiring testimony
from the children of Marivic Genosa.
"6. The trial court gravely erred in concluding that Marivic's
flight to Manila and her subsequent apologies were indicia of guilt, instead of
a clear attempt to save the life of her unborn child.
"7. The trial court gravely erred in concluding that there was
an aggravating circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate
the traditional elements in determining the existence of self-defense and
defense of foetus in this case, thereby erroneously convicting Marivic Genosa
of the crime of parricide and condemning her to the ultimate penalty of
death."13
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her fetus; and (2)
whether treachery attended the killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in
nature, if not collateral to the resolution of the principal issues. As
consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of
respect and will not be disturbed on appeal in the absence of any showing that
the trial judge gravely abused his discretion or overlooked, misunderstood or
misapplied material facts or circumstances of weight and substance that could
affect the outcome of the case.14
In appellant's first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that would
reverse or modify the trial court's disposition of the case. In any event, we
will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an
obviously hasty decision without reflecting on the evidence adduced as to
self-defense." We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on
record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse
assessing the testimony and the self-defense theory of the accused. While she,
or even this Court, may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an
"obviously hasty" manner. The Information had been filed with the
lower court on November 14, 1996. Thereafter, trial began and at least 13
hearings were held for over a year. It took the trial judge about two months
from the conclusion of trial to promulgate his judgment. That he conducted the
trial and resolved the case with dispatch should not be taken against him, much
less used to condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find his actions in
substantial compliance with his constitutional obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa
and appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,16 this Court held:
"The key element in parricide is the relationship of the
offender with the victim. In the case of parricide of a spouse, the best proof
of the relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral evidence
of the fact of marriage may be considered by the trial court if such proof is
not objected to."
Two of the prosecution witnesses -- namely, the mother and the
brother of appellant's deceased spouse -- attested in court that Ben had been
married to Marivic.17 The defense raised no
objection to these testimonies. Moreover, during her direct examination,
appellant herself made a judicial admission of her marriage to Ben.18 Axiomatic is the rule that
a judicial admission is conclusive upon the party making it, except only when
there is a showing that (1) the admission was made through a palpable mistake,
or (2) no admission was in fact made.19 Other than merely attacking
the non-presentation of the marriage contract, the defense offered no proof
that the admission made by appellant in court as to the fact of her marriage to
the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct
cause of Ben's death -- whether by a gunshot or by beating with a pipe -- has
no legal consequence. As the Court elucidated in its September 29, 2000
Resolution, "[c]onsidering that the appellant has admitted the fact of
killing her husband and the acts of hitting his nape with a metal pipe and of
shooting him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts
actually caused the victim's death." Determining which of these
admitted acts caused the death is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this
case came to us for automatic review, appellant had not raised the novel
defense of "battered woman syndrome," for which such evidence may
have been relevant. Her theory of self-defense was then the crucial issue
before the trial court. As will be discussed shortly, the legal requisites of
self-defense under prevailing jurisprudence ostensibly appear inconsistent with
the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at
the time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellant's children. As correctly elucidated by the solicitor general,
all criminal actions are prosecuted under the direction and control of the
public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further
points out, neither the trial court nor the prosecution prevented appellant
from presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the
flight of Marivic to Manila and her subsequent apologies to her brother-in-law
are indicia of her guilt or are attempts to save the life of her unborn child.
Any reversible error as to the trial court's appreciation of these
circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of
a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal
liability, invokes self-defense and/or defense of her unborn child. When the
accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence.21 Well-settled is the rule
that in criminal cases, self-defense (and similarly, defense of a stranger or
third person) shifts the burden of proof from the prosecution to the defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the
battered woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.23 By appreciating evidence
that a victim or defendant is afflicted with the syndrome, foreign courts
convey their "understanding of the justifiably fearful state of mind of a
person who has been cyclically abused and controlled over a period of
time."24
A battered woman has been defined as a woman "who is
repeatedly subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without concern
for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any woman
may find herself in an abusive relationship with a man once. If it occurs a
second time, and she remains in the situation, she is defined as a battered
woman."25
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer's actions; and false hopes that the
relationship will improve.26
More graphically, the battered woman syndrome is characterized by
the so-called "cycle of violence,"27 which has three phases: (1)
the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.28
During the tension-building
phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify
the batterer through a show of kind, nurturing behavior; or by simply staying
out of his way. What actually happens is that she allows herself to be abused
in ways that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however,
proves to be double-edged, because her "placatory" and passive
behavior legitimizes his belief that he has the right to abuse her in the first
place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or physical abuse
worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered woman
soon withdraws emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence "spirals out of control" and leads
to an acute battering incident.29
The acute battering
incident is said to be characterized by brutality, destructiveness
and, sometimes, death. The battered woman deems this incident as unpredictable,
yet also inevitable. During this phase, she has no control; only the batterer
may put an end to the violence. Its nature can be as unpredictable as the time
of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would
only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her past
painful experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.30
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple experience profound relief. On the one
hand, the batterer may show a tender and nurturing behavior towards his
partner. He knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again. On the other
hand, the battered woman also tries to convince herself that the battery will
never happen again; that her partner will change for the better; and that this
"good, gentle and caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this
phase of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a
battered woman's psyche. In this phase, she and her batterer are indeed
emotionally dependent on each other -- she for his nurturant behavior, he for
her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the
defense presented several witnesses. She herself described her heart-rending
experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your
husband was abusive to you and cruel. In what way was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he always slap me and
sometimes he pinned me down on the bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate
each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced
and after that I go to him and he said 'sorry'.
Q During those times that you were the recipient of such cruelty
and abusive behavior by your husband, were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo.
x x x x x x x x x
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
x x x x x x x x x
[Court] /to the witness
Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of
injury inflicted on your occurred, after your marriage, from that time on, how
frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a
week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just
quarrel me." 32
Referring to his "Out-Patient Chart"33 on Marivic Genosa at the
Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on
chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents which
are found in the chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.
Q Will you please read the physical findings together with the
dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R)
lower eyelid and redness of eye. Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain
and contusion (R) breast. Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending
physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were
the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with
something rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an
inflammation of left breast. So, [pain] meaning there is tenderness. When your
breast is traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
x x x x x x x x x
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know the cause of
these injuries. And she told me that it was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
x x x x x x x x x
ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused
sometime in the month of November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court,
was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy
was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination
about her pregnancy or for some other findings?
A No, she was admitted for hypertension headache which complicates
her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
x x x x x x x x x
Q Lets go back to the clinical history of Marivic Genosa. You said
that you were able to examine her personally on November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same period from 1989
to 1995, she had a consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that
the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our
treatment. She does not response when the medication was given to her, because
tension headache is more or less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is
emotional in nature?
A From what I deduced as part of our physical examination of the
patient is the family history in line of giving the root cause of what is
causing this disease. So, from the moment you ask to the patient all comes from
the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause
increases in hypertension which is unfortunately does not response to the
medication.
Q In November 6, 1995, the date of the incident, did you take the
blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is
dangerous level of blood pressure?
A It was dangerous to the child or to the fetus." 34
Another defense witness, Teodoro Sarabia, a former neighbor of the
Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.35
Ecel Arano also testified36 that for a number of times
she had been asked by Marivic to sleep at the Genosa house, because the latter
feared that Ben would come home drunk and hurt her. On one occasion that Ecel
did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase."
Then Marivic came running into Ecel's room and locked the door. Ben showed up
by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help
-- this time to find Ben -- but they were unable to. They returned to the
Genosa home, where they found him already drunk. Again afraid that he might
hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided
to leave.
On that same night that culminated in the death of Ben Genosa, at
least three other witnesses saw or heard the couple quarreling.37 Marivic relates in detail
the following backdrop of the fateful night when life was snuffed out of him,
showing in the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November
15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working
then after office hours, I boarded the service bus and went to Bilwang. When I
reached Bilwang, I immediately asked my son, where was his father, then my
second child said, 'he was not home yet'. I was worried because that was
payday, I was anticipating that he was gambling. So while waiting for him, my
eldest son arrived from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for
him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at
Bilwang?
A I went back around almost 8:00 o'clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep
with me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with me,
but she resisted because she had fears that the same thing will happen again
last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Araño, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not
allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you?
What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel
him.
Q What was the cause of his nagging or quarreling at you if you
know?
A He was angry at me because I was following x x x him, looking for
him. I was just worried he might be overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you
if any?
A He was nagging at me at that time and I just ignore him because I
want to avoid trouble for fear that he will beat me again. Perhaps he was
disappointed because I just ignore him of his provocation and he switch off the
light and I said to him, 'why did you switch off the light when the children
were there.' At that time I was also attending to my children who were doing
their assignments. He was angry with me for not answering his challenge, so he
went to the kitchen and [got] a bolo and cut the antenna wire to stop me from
watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because
they were scared and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was
carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I
fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was
going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their
reactions?
A After a couple of hours, he went back again and he got angry with
me for packing his clothes, then he dragged me again of the bedroom holding my
neck.
Q You said that when Ben came back to your house, he dragged you?
How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he
kept on shouting at me that 'you might as well be killed so there will be
nobody to nag me.'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key then he pulled
his wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything on my mind was to
pity on myself, then the feeling I had on that very moment was the same when I
was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
x x x x x x x x x
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate
me." 38
In addition, Dra. Natividad Dayan was called by the RTC to testify
as an expert witness to assist it in understanding the psyche of a battered
person. She had met with Marivic Genosa for five sessions totaling about
seventeen hours. Based on their talks, the former briefly related the latter's
ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered
wife? Could you in layman's term describe to this Court what her life was like
as said to you?
A: What I remember happened then was it was more than ten years,
that she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband
had a very meager income, she was the one who was practically the bread earner
of the family. The husband was involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in cockfight and going home very angry
and which will trigger a lot of physical abuse. She also had the experience a
lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was
not his own. So she was very angry, she was at the same time very depressed
because she was also aware, almost like living in purgatory or even hell when
it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely
elicited, but wittingly or unwittingly put forward, additional supporting
evidence as shown below:
"Q In your first encounter with the appellant in this case in
1999, where you talked to her about three hours, what was the most relevant
information did you gather?
A The most relevant information was the tragedy that happened. The
most important information were escalating abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three hours, we presume that you
already knew of the facts of the case or at least you have substantial
knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I
can consider them as substantial.
x x x x x x x x x
Q Did you gather an information from Marivic that on the side of
her husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of her
husband that were fond of battering their wives?
A What I remember that there were brothers of her husband who are
also battering their wives.
Q Did she not inform you that there was an instance that she stayed
in a hotel in Ormoc where her husband followed her and battered [her] several
times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in
that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about
being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on
saying this matter. I think that is the first time that we have this in the
Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this
kind happened, it was really a self-defense. I also believe that there had been
provocation and I also believe that she became a disordered person. She had to
suffer anxiety reaction because of all the battering that happened and so she
became an abnormal person who had lost she's not during the time and that is
why it happened because of all the physical battering, emotional battering, all
the psychological abuses that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as
follows:
"Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial
Inventory. The purpose of that test is to find out about the lying prone[ne]ss
of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth,
or is she someone who can exaggerate or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this objective
personality test?
A She was a person who passed the honesty test. Meaning she is a
person that I can trust. That the data that I'm gathering from her are the
truth."41
The other expert witness presented by the defense, Dr. Alfredo
Pajarillo, testified on his Psychiatric Report,42 which was based on his
interview and examination of Marivic Genosa. The Report said that during the
first three years of her marriage to Ben, everything looked good -- the
atmosphere was fine, normal and happy -- until "Ben started to be
attracted to other girls and was also enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed
toward his family, particularly to his wife. The Report continued: "At
first, it was verbal and emotional abuses but as time passed, he became
physically abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her husband went for a drinking [spree].
They had been married for twelve years[;] and practically more than eight
years, she was battered and maltreated relentlessly and mercilessly by her
husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were
in vain. Further quoting from the Report, "[s]he also sought the advice
and help of close relatives and well-meaning friends in spite of her feeling
ashamed of what was happening to her. But incessant battering became more and
more frequent and more severe. x x x."43
From the totality of evidence presented, there is indeed no doubt
in the Court's mind that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on
Appellant
Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. In determining her state of
mind, we cannot rely merely on the judgment of an ordinary, reasonable person
who is evaluating the events immediately surrounding the incident. A Canadian
court has aptly pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and necessary.
"How can the mental state of the appellant be appreciated without it? The
average member of the public may ask: Why would a woman put up with this kind
of treatment? Why should she continue to live with such a man? How could she
love a partner who beat her to the point of requiring hospitalization? We would
expect the woman to pack her bags and go. Where is her self-respect? Why does
she not cut loose and make a new life for herself? Such is the reaction of the
average person confronted with the so-called 'battered wife syndrome.'"44
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable person. What goes on
in the mind of a person who has been subjected to repeated, severe beatings may
not be consistent with -- nay, comprehensible to -- those who have not been
through a similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women.45
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latter's "ability to act decisively in
her own interests, making her feel trapped in the relationship with no means of
escape."46 In her years of research,
Dr. Walker found that "the abuse often escalates at the point of
separation and battered women are in greater danger of dying then."47
Corroborating these research findings, Dra. Dayan said that
"the battered woman usually has a very low opinion of herself. She has x x
x self-defeating and self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they provoke[d] it, that they
were the one[s] who precipitated the violence[; that] they provoke[d] their
spouse to be physically, verbally and even sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a battered
woman does not readily leave an abusive partner -- poverty, self-blame and
guilt arising from the latter's belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.49
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases
abounded. As a result of his experience with domestic violence cases, he became
a consultant of the Battered Woman Office in Quezon City. As such, he got
involved in about forty (40) cases of severe domestic violence, in which the
physical abuse on the woman would sometimes even lead to her loss of
consciousness.50
Dr. Pajarillo explained that "overwhelming brutality,
trauma" could result in posttraumatic stress disorder, a form of
"anxiety neurosis or neurologic anxietism."51 After being repeatedly and
severely abused, battered persons "may believe that they are essentially
helpless, lacking power to change their situation. x x x [A]cute battering
incidents can have the effect of stimulating the development of coping
responses to the trauma at the expense of the victim's ability to muster an
active response to try to escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have a predictable positive
effect."52
A study53 conducted by Martin
Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does
not, she will be more likely to respond to that situation with coping responses
rather than trying to escape." He said that it was the cognitive aspect -- the
individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a
situation turn out to be less important than the individual's set of beliefs or
perceptions concerning the situation. Battered women don't attempt to leave the
battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that
nothing they or anyone else does will alter their terrible circumstances."54
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he
is capable of killing her, and that there is no escape.55 Battered women feel unsafe,
suffer from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is
available, she stays with her husband, not only because she typically lacks a
means of self-support, but also because she fears that if she leaves she would
be found and hurt even more.57
In the instant case, we meticulously scoured the records for
specific evidence establishing that appellant, due to the repeated abuse she
had suffered from her spouse over a long period of time, became afflicted with
the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find
ample evidence that would confirm the presence of the essential characteristics
of BWS.
The defense fell short of proving all three phases of the
"cycle of violence" supposedly characterizing the relationship of Ben
and Marivic Genosa. No doubt there were acute battering incidents. In relating
to the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the tension-building phase of
the cycle. She was able to explain in adequate detail the typical
characteristics of this stage. However, that single incident does not prove the
existence of the syndrome. In other words, she failed to prove that in at least
another battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up
prior to acute battering? How did Marivic normally respond to Ben's relatively
minor abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the
third phase of the cycle. She simply mentioned that she would usually run away
to her mother's or father's house;58 that Ben would seek her
out, ask for her forgiveness and promise to change; and that believing his
words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between
her and her spouse? Did she believe that she was the only hope for Ben to
reform? And that she was the sole support of his emotional stability and
well-being? Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself
her factual experiences and thoughts that would clearly and fully demonstrate
the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert
witnesses for the defense. Indeed, they were able to explain fully, albeit
merely theoretically and scientifically, how the personality of the battered
woman usually evolved or deteriorated as a result of repeated and severe
beatings inflicted upon her by her partner or spouse. They corroborated each
other's testimonies, which were culled from their numerous studies of hundreds
of actual cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at all --
based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be appreciated. To repeat,
the records lack supporting evidence that would establish all the essentials of
the battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does
not in itself establish the legal right of the woman to kill her abusive
partner. Evidence must still be considered in the context of self-defense.59
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of the battered
woman at the time of the offense60 -- she must have actually
feared imminent harm from her batterer and honestly believed in the need to
kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threat on one's life;
and the peril sought to be avoided must be imminent and actual, not
merely imaginary.61 Thus, the Revised Penal
Code provides the following requisites and effect of self-defense:62
"Art. 11. Justifying circumstances. -- The
following do not incur any criminal liability:
"1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person
defending himself."
Unlawful aggression is the most essential element of self-defense.63 It presupposes actual,
sudden and unexpected attack -- or an imminent danger thereof -- on the life or
safety of a person.64 In the present case,
however, according to the testimony of Marivic herself, there was a sufficient
time interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and escape
to their children's bedroom. During that time, he apparently ceased his attack
and went to bed. The reality or even the imminence of the danger he posed had
ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their
children's bedroom -- and based on past violent incidents, there was a great
probability that he would still have pursued her and inflicted graver harm --
then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents
of domestic battery usually have a predictable pattern. To require the battered
person to await an obvious, deadly attack before she can defend her life
"would amount to sentencing her to 'murder by installment.'"65 Still, impending danger
(based on the conduct of the victim in previous battering episodes) prior to
the defendant's use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.66 Considering such
circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does
not warrant self-defense.67 In the absence of such
aggression, there can be no self-defense -- complete or incomplete -- on the
part of the victim.68 Thus, Marivic's killing of
Ben was not completely justified under the circumstances.
Mitigating Circumstances
Present
In any event, all is not lost for appellant. While she did not
raise any other modifying circumstances that would alter her penalty, we deem
it proper to evaluate and appreciate in her favor circumstances that mitigate
her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not been
raised by the parties.69
From several psychological tests she had administered to Marivic,
Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
"This is a classic case of a Battered Woman Syndrome.
The repeated battering Marivic experienced with her husband constitutes a form
of [cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her
part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained
that the effect of "repetitious pain taking, repetitious battering, [and]
repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he
said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering.
Second, the severity of the battering. Third, the prolonged administration of
battering or the prolonged commission of the battering and the psychological
and constitutional stamina of the victim and another one is the public and
social support available to the victim. If nobody is interceding, the more she
will go to that disorder....
x x x x x x x x x
Q You referred a while ago to severity. What are the qualifications
in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of the head like
that. It is usually the very very severe stimulus that precipitate this post[t]raumatic
stress disorder. Others are suffocating the victim like holding a pillow on the
face, strangulating the individual, suffocating the individual, and boxing the
individual. In this situation therefore, the victim is heightened to painful
stimulus, like for example she is pregnant, she is very susceptible because the
woman will not only protect herself, she is also to protect the fetus. So the
anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do
you classify?
A We classify the disorder as [acute], or chronic or delayed or
[a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one battering and
the individual will manifest now a severe emotional instability, higher
irritability remorse, restlessness, and fear and probably in most [acute] cases
the first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious
maltreatment, any prolonged, it is longer than six (6) months. The [acute] is
only the first day to six (6) months. After this six (6) months you become
chronic. It is stated in the book specifically that after six (6) months is
chronic. The [a]typical one is the repetitious battering but the individual who
is abnormal and then become normal. This is how you get neurosis from neurotic
personality of these cases of post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the expert
witness clarified further:
"Q But just the same[,] neurosis especially on battered woman
syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated."73
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in "cumulative provocation which broke
down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or
impairment of memory."
Based on the explanations of the
expert witnesses, such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power without, however,
depriving her of consciousness of her acts. There
was, thus, a resulting diminution of her freedom of action, intelligence or
intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the
Revised Penal Code, this circumstance should be taken in her favor and
considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.77 To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and (2) this act
is not far removed from the commission of the crime by a considerable length of
time, during which the accused might recover her normal equanimity.78
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Marivic. He had further
threatened to kill her while dragging her by the neck towards a cabinet in
which he had kept a gun. It should also be recalled that she was eight months
pregnant at the time. The attempt on her life was likewise on that of her
fetus.79 His abusive and violent
acts, an aggression which was directed at the lives of both Marivic and her
unborn child, naturally produced passion and obfuscation overcoming her reason.
Even though she was able to retreat to a separate room, her emotional and
mental state continued. According to her, she felt her blood pressure rise; she
was filled with feelings of self-pity and of fear that she and her baby were
about to die. In a fit of indignation, she pried open the cabinet drawer where
Ben kept a gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that
there was no considerable period of time within which Marivic could have
recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony80 that with "neurotic
anxiety" -- a psychological effect on a victim of "overwhelming
brutality [or] trauma" -- the victim relives the beating or trauma as if
it were real, although she is not actually being beaten at the time. She cannot
control "re-experiencing the whole thing, the most vicious and the trauma
that she suffered." She thinks "of nothing but the suffering."
Such reliving which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during the brief time
interval and prevented her from recovering her normal equanimity. Accordingly,
she should further be credited with the mitigating circumstance of passion and
obfuscation.
It should be clarified that these two circumstances --
psychological paralysis as well as passion and obfuscation -- did not arise
from the same set of facts.
On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the
violent aggression he had inflicted on her prior to the killing. That the
incident occurred when she was eight months pregnant with their child was
deemed by her as an attempt not only on her life, but likewise on that of their
unborn child. Such perception naturally produced passion and obfuscation on her
part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against
persons by employing means, methods or forms in the execution thereof without
risk to oneself arising from the defense that the offended party might make.81 In order to qualify an act
as treacherous, the circumstances invoked must be proven as indubitably as the
killing itself; they cannot be deduced from mere inferences, or conjectures,
which have no place in the appreciation of evidence.82 Because of the gravity of
the resulting offense, treachery must be proved as conclusively as the killing
itself.83
Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been found
lying in bed with an "open, depressed, circular" fracture located at the
back of his head. As to exactly how and when he had been fatally attacked,
however, the prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his death:
"Q You said that when Ben came back to your house, he dragged
you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he
kept on shouting at me that 'you might as well be killed so there will be
nobody to nag me'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key then he pulled
his wallet which contained a blade about 3 inches long and I was aware that he
was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long,
and when he was about to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything on my mind was to
pity on myself, then the feeling I had on that very moment was the same when I
was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
x x x x x x x x x
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and ½ inch wide.
Q It is a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
x x x x x x x x x
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe
and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I
know my blood pressure was raised. I was frightened I was about to die because
of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him,
the witness at the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through
with him, I took pity on myself and I felt I was about to die also because of
my blood pressure and the baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victim's position relative to appellant's
at the time of the shooting. Besides, equally axiomatic is the rule that when a
killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be said to
have been forewarned and to have anticipated aggression from the assailant.85
Moreover, in order to appreciate alevosia, the
method of assault adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked.86 There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof
that she consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court resolves the
doubt in her favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised
Penal Code is reclusion perpetua to death. Since two
mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by
one (1) degree, pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion
temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing the penalty
by one degree, and no other modifying circumstances were shown to have attended
the commission of the offense.90 Under the Indeterminate
Sentence Law, the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium period of reclusion
temporal.
Considering all the circumstances of the instant case, we deem it
just and proper to impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion
temporal in its medium period, or 14 years 8 months and 1 day as
maximum. Noting that appellant has already served the minimum period, she may
now apply for and be released from detention on parole.91
Epilogue
Being a novel concept in our jurisprudence, the battered woman
syndrome was neither easy nor simple to analyze and recognize vis-Ã -vis the
given set of facts in the present case. The Court agonized on how to apply the
theory as a modern-day reality. It took great effort beyond the normal manner
in which decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the
case, it endeavored to take a good look at studies conducted here and abroad in
order to understand the intricacies of the syndrome and the distinct
personality of the chronically abused person. Certainly, the Court has learned
much. And definitely, the solicitor general and appellant's counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we
can only work within the limits of law, jurisprudence and given facts. We
cannot make or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of
self-defense arising from the battered woman syndrome. We now sum up our main
points. First, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the
appellant and her intimate partner. Second, the final acute
battering episode preceding the killing of the batterer must have produced in
the battered person's mind an actual fear of an imminent harm from her batterer
and an honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have
posed probable -- not necessarily immediate and actual -- grave harm to the
accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of
self-defense. Under the existing facts of the present case, however, not all of
these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating
circumstances and no aggravating circumstance attending her commission of the
offense, her penalty is REDUCED to six (6) years and one (1)
day of prision mayor as minimum; to 14 years, 8 months and 1
day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum
penalty hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her
from custody upon due determination that she is eligible for parole, unless she
is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona,
Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join
Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of parricide, our
esteemed colleague Mr. Justice Artemio V. Panganiban found that there was no
factual basis to conclude that Marivic was suffering from "Battered Woman
Syndrome" (BWS) at the time she took the life of her husband. With due
respect, I register my dissent.
The novel theory of "Battered Woman Syndrome" is
recognized in foreign jurisprudence as a form of self-defense. It operates upon
the premise that a woman who has been cyclically abused and controlled over a
period of time develops a fearful state of mind. Living in constant danger of
harm or death, she knows that future beatings are almost certain to occur and
will escalate over time. Her intimate knowledge of the violent nature of her
batterer makes her alert to when a particular attack is forthcoming, and when
it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness
and fail to perceive possible solutions to the problem other than to injure or
kill her batterer. She is seized by fear of an existing or impending lethal
aggression and thus would have no opportunity beforehand to deliberate on her
acts and to choose a less fatal means of eliminating her sufferings.1
As exhaustively discussed in the ponencia, the
"Battered Woman Syndrome" has three phases, to wit: (1) the
tension-building phase, where minor batterings in the form of verbal or slight
physical abuse occurs. Here, the woman tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way; (2) the
acute battering incident phase which is characterized by brutality,
destructiveness and sometimes, death. The battered woman usually realizes that
she cannot reason with him and that resistance would only exacerbate her
condition; and (3) the tranquil period, where the couple experience a compound
relief and the batterer may show a tender and nurturing behavior towards his
partner.
Contrary to the findings in the ponencia, the
defense was able to establish the occurrence on more than one occasion of the
"tension-building phase" of the cycle. The various testimonies of
appellant's witnesses clearly reveal that she knew exactly when she would once
again be subjected to acute battery. Her cousin, Ecel Arano, testified that she
often asked the latter to sleep in her house as she was afraid every time her
husband came home drunk. Clearly, whenever appellant requested for Arano's
company, she was experiencing a tension-building phase. The barangay captain,
Panfilo Tero, also testified that appellant sought his help two months before
she killed her husband, again demonstrating that she was in the
tension-building phase and was attempting to prevent another incident of acute
battery. Appellant presented evidence to prove that the tension-building phase
would occur whenever her husband would go out looking for other women, would
lose at cockfights or would come home drunk. She often tried to ignore her
husband's attitude or, as testified to by some witnesses for the prosecution,
even shouted back, fought off or even injured her husband during the
tension-building phase, if only to prevent the onset of acute battery.
Appellant was able to perfectly describe the tension-building phase
of the cycle immediately prior to the death of her husband, i.e., when
she knew or felt that she was going to be killed by the deceased. She could not
possibly have testified with clarity as to prior tension-building phases in the
cycle as she had never tried to kill her husband before this time.
It was shown by the testimonies of appellant and even witnesses for
the prosecution that appellant would seek shelter in her mother's or her
father's house after an acute battering incident, after which would begin the
process of begging for forgiveness, promises of change in behavior and return
to the conjugal home, only for the same cycle to begin all over again.
To require appellant to prove the state of mind of the deceased, as
seems to be required in the ponencia, would mean that no
person would ever be able to prove self-defense in a battered woman case.
Appellant could not possibly prove whether the deceased felt provoked into
battering by any act or omission of appellant. She cannot possibly prove that
she felt herself to be the sole support of the deceased's emotional stability
and well-being. Nevertheless, appellant felt trapped and helpless in the
relationship as, in the end, she resorted to killing her husband as no one
could or did help her, whether out of fear or insensitivity, during the violent
marriage she endured.
The "acute battering incident stage" was well
demonstrated by the severe beatings suffered by Marivic in the hands of the
deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred at least
3 times a week in the 11 miserable years of their marriage,3 six incidents of which were
documented by the 1990-1995 medical records of Marivic. They included, among
others, hematoma, contusion, and pain on the breasts; multiple contusions and
trauma on the different parts of her body even during her pregnancy in 1995.4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of
their relationship. On more than 5 occasions, Marivic ran to her parents' house
after violent fights with the deceased only to forgive the latter every time he
would fetch her and promise to change.5
All these recurring phases of cycle of violence, repentance and
forgiveness developed a trauma in the mind of Marivic making her believe that a
forthcoming attack from the deceased would cause her death. This state of mind
of Marivic was revealed in her testimony given way back in 1998, before she was
examined by experts on BWS. Unaware of the significance of her declarations,
she candidly narrated how she felt immediately before she killed the deceased,
thus -
ATTY. TABUCANON
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx xxx xxx
Q What happened when you were brought to the drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key. [T]hen he
pulled his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that
long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity
on myself, then the feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.
xxx xxx xxx6
Q What else happened?
A When I was in the room, I felt the same thing like what happened
before I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood
pressure has raised. I was frightened I was about to die because of my blood
pressure.
xxx xxx xxx
A Considering all the physical sufferings that I've been through
him, I took pity on myself and I felt I was about to die also because of my
blood pressure and the baby, so I got the gun and shot him.7
It must be stressed that the defense of "Battered Woman
Syndrome" was not raised by Marivic before the lower court but only here
on automatic review. This makes the foregoing testimony more worthy of great
weight and credence considering that the same could not have been cunningly
given to suit or conform to the profile of a battered woman.
Moreover, there was indeed basis for Marivic to fear death because
of her medical history. Dr. Dino Caing testified that he treated Marivic for
hypertension due to domestically related emotional stress on 23 separate
occasions. The latest one was on November 6, 1995 when she suffered from severe
hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8
Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an
expert on BWS who examined Marivic, assessed the effects of the repeated
violence on the latter as follows:
A What I remember ... was it was more than ten years that she was
suffering from emotional anguish. There were a lot of instance of abuses, ...
emotional abuse...verbal abuse and... physical abuse. The husband had very
meager income, she was the one who was practically the bread earner of the
family. The husband was involved in a lot of vices, going out with barkadas, drinking,
even womanizing, being involved in cockfighting and in going home very angry
which... triggered a lot of physical abuse. She also had the experience of
taunting from the husband for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was carrying was not his
own. So she was very angry, she was at the same time very depressed because she
.. .[felt] almost like living in purgatory or even in hell when it was
happening day in and day out.
xxx xxx xxx
Q And what was it that triggered ... that tragedy in your opinion?
A I think for several weeks, she was already having all those
tensions, all those anxieties, they were not enough, that the husband was even
going to cockfighting x x x
A She was angry with him, he was angry with her and I think he
dragged her and even spun her around. She tried to fight him so there was a lot
of fight and when she was able to escape, she went to another room and she
locked herself with the children. And when the husband was for a while very
angry he calms down then and then (sic). But I remember before that the husband
was looking for the gun and I think he was not able to open the cabinet because
she had the key. So during that time, I remember, that she was very much afraid
of him, so when the husband calmed down and he was asleep, all she was
concerned was to end up her misery, to save her child which she was carrying
and to save her two children. I believe that somehow she's not rational.9
xxx xxx xxx
PROS. TRUYA
Q Mrs. Witness, being an expert witness, giving more the facts and
circumstances on this case that the books you studied in the expertise in line
and in the 77 hour contact with appellant Mrs. Genosa, could you say that this
is not ordinary self-defense but a survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?
A Yes, sir this is not an ordinary self-defense, but this [is] a
need to survive, a need to survive with her two sons and [the] child she's
bringing.
Q Had she not able to kill her husband, would she still be in the
very short moment with the victim (sic)?
A If she did not do that she believes that she will be the one who
would be killed.10
There is no doubt therefore that Marivic was afflicted with the
"Battered Woman Syndrome" and that it was an apprehension of death
and the instinct to defend her and her unborn child's life that drove her to
kill her husband.
The ponente further refused to sustain the
self-defense proffered by Marivic because there was allegedly no aggression or
danger posed on her life by the victim at the time she attacked the latter.
Again, I beg to disagree.
Traditionally, in order that self-defense may be appreciated, the
unlawful aggression or the attack must be imminent and actually in existence.
This interpretation must, however, be re-evaluated vis-a-vis the
recognized inherent characteristic of the psyche of a person afflicted with the
"Battered Woman Syndrome." As previously discussed, women afflicted
by this syndrome live in constant fear for their life and thus respond in
self-defense. Once BWS and an impending danger based on the conduct of the
deceased in previous battering episodes are established, actual occurrence of
an assault is no longer a condition sine qua non before self
defense may be upheld. Threatening behavior or communication can
satisfy the required imminence of danger. As stated in the ponencia, to
require the battered person to await an obvious deadly attack before she can
defend her life would amount to sentencing her to murder by installment.
In the case at bar, the cycle of violence perpetrated by the
deceased, which culminated in the physical assaults and an attempt to shoot
Marivic when she was 8 months pregnant, took the place of unlawful aggression,
thus entitling her to a complete self defense even if there was no actual employment
of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because
the latter was verbally threatening to kill her while attempting to get a gun
from the drawer, but more importantly because the deceased wounded her on the
wrist with a bolo, and because of the deceased's previous conduct of
threatening to cut her throat with a cutter which he kept in his wallet. Quoted
hereunder are the relevant testimonies of Marivic -
A When I arrived home, he was already in his usual behavior.
xxx xxx xxx
A He was drunk again, he was yelling in his usual unruly behavior.
xxx xxx xxx
A He was nagging ... me at that time and I just ignore[d] him
because I want to avoid trouble for fear that he will beat me again. Perhaps he
was disappointed because I just ignore[d] hi[s] provocation and he switch off
the light and I said to him, "why did you switch off the light when the
children were there." At that time I was also attending to my children who
were doing their assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire
to stop me from watching television.
xxx xxx xxx
A He switch[ed] off the light and the children were shouting
because they were scared and he was already holding a bolo.
Q How do you describe this bolo?
A 1 1/2 feet.
xxx xxx xxx
Q You said the children were scared, what else happened as Ben was
carrying that bolo?
A He was about to attack me so I ran to the room.
Q What do you mean that he was about to attack you?
A When I attempted] to run he held my hands and he whirled me and I
fell [on] the bedside.11
xxx xxx xxx
COURT
To the witness
xxx xxx xxx
Q The bolo that you said which Ben was holding at that time, [was]
it a bolo or a knife?
A Bolo.
Q Were you wounded or were there inflictions on your body when he
was holding and trying to frighten you [with] that bolo?
A No, only here.
COURT INTERPRETER
(The witness pointed to her wrist).
COURT
To the witness
Q You were demonstrating a motion, whirling, did your husband
really whirl you?
A Yes, your Honor.
Q How did he whirl you?
A Whirled around.
Q Just like spinning.
xxx xxx xxx
Q Where did he whirl you, was it inside the bedroom or outside?
A In our bedroom.
Q Then after the whirling what happened?
A He kicked my ass and then I screamed.12
xxx xxx xxx
Q You screamed for help and he left, do you know where he was
going?
A Outside perhaps to drink more.
Q When he left what did you do...?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.13
A I was frightened that my husband would hurt me, so I packed all
his things then on the following day I will leave, I was afraid and I want to
make sure I would deliver my baby safely.14
xxx xxx xxx
A After a couple of hours, he went back again and got angry with me
for packing his clothes, then he dragged me again outside of the bedroom
holding my neck.
ATTY. TABUCANON
Q You said that when Ben came back to your house, he dragged you?
How did he drag... you?
COURT INTERPRETER
(The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door backwards.
ATTY. TABUCANON
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he
kept shouting at me that "you might as well be killed so there will be
nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx xxx xxx
Q What happened when you were brought to the drawer?
A He dragged me towards the drawer and he was about to open the
drawer but he could not open it because he did not have the key. [T]hen he
pulled his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that
long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the room, and on that very moment everything on my mind was pity
on myself, then the feeling I had on that very moment was the same when I was
admitted in PHILPHOS Clinic, I was about to vomit.
xxx xxx xxx
Q You said that he dropped the blade, for the record will you
please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he intimidate me.15
RE-DIRECT BY ATTY. TABUCANON
Q In other words, there were two (2) incidents, the first incident
and then he left and then two (2) hours after he came back?
A Yes, sir.
Q And the whirling happened in the first incident?
A Yes, sir.
Q And the dragging with arms flexed in her neck and on that blade
happened on the second incident (sic)?
A Ye, sir.
xxx xxx xxx
COURT
To the witness
Q Why, what is that blade about?
A A cutter about 3 inches long.
Q Who used that?
A Ben.
Q He used that on you?
A He scared me on that (sic).
xxx xxx xxx
Q But he did not hit you with that?
A Yes, because I managed to run every time he scared (sic).16
There are many things which cannot be proved by direct evidence.
One of this is state of mind. In the case at bar, there is more than sufficient
physical evidence presented by the appellant from which her mental state can be
inferred. The prosecution did not object to the presentation of these physical
and testimonial pieces of evidence, namely, the medical records of 23 instances
of domestic violence-related injuries and the testimonies of neighbors, cousins
and even the barangay captain. Indeed, no person would endure 23 reported
instances of beatings if she were planning to kill her spouse in the first
place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster
their attempts to employ the BWS defense.
Moreover, as found in the ponencia, appellant
should be allowed the mitigating circumstance of passion and obfuscation. This,
at the very least, supports a finding that the acts of violence and battery
committed by the deceased were illegal and unlawful and were committed
immediately before appellant could recover her natural equanimity. But what is
the natural equanimity of a battered woman? Appellant was not a normal married
woman. She can never be in a state of natural equanimity as she was in a
constant state of alertness and hypersensitivity to the next phase of acute
battery. The esteemed ponente also correctly found that the
appellant acted with diminished will-power. However, he failed to go further.
In the case of People
v. Javier,17 it was held:
Since accused-appellant has already admitted to the killing, it is
incumbent upon him to prove the claimed mitigating circumstance of illness. In
this case, however, aside from the testimony of the accused that his mind went
blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This Court
can hardly rely on the bare allegations of accused-appellant, nor on mere
presumptions and conjectures. No clear and convincing evidence was shown that
accused-appellant was suffering an illness which diminished his exercise of
will-power at the time of the killing.18
In the case at bar, appellant was allowed and did in fact present
clear and convincing evidence that she was a battered woman for 13-14 years and
that she suffered from the "Battered Woman Syndrome". Expert
testimony was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony and
the evidence thus presented is to make impossible the proof of mental state.
Evidence as to the mental state need not be also "beyond reasonable
doubt."
Verily, the requirement of threatening behavioral pattern of the
batterer in previous violent episodes was sufficiently satisfied in the present
case. This, juxtaposed to Marivic's affliction with BWS justified the killing
of the deceased. The danger posed or created in her mind by the latter's
threats using bladed weapons, bred a state of fear, where under the
circumstances, the natural response of the battered woman would be to defend herself
even at the cost of taking the life of the batterer.
The ponencia's acknowledgement of "Battered
Woman Syndrome" as a valid form of self-defense, is a noble recognition of
the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we
deliberately close our eyes to the antecedents of this case. The facts are
simple. Marivic was suffering from the "Battered Woman Syndrome" and
was defending herself when she killed her husband. Her acquittal of the charge
of parricide is therefore in order.
IN VIEW WHEREOF, I vote to ACQUIT Marivic
Genosa.
Footnotes
1 Penned by Judge Fortunito
L. Madrona.
2 Assailed Decision, p.
17; rollo, p. 43.
3 Signed by Provincial
Prosecutor I Rosario D. Beleta.
4 Rollo, p. 9.
5 Atty. Joventino Isidro. The
accused was also represented later by Atty. Gil Marvel P. Tabucanon.
6 Records, p. 65.
7 Appellee's Brief, pp.
5-13; rollo, pp. 435-443. Signed by Solicitor General Alfredo L.
Benipayo, Assistant Solicitor General Karl B. Miranda, and Solicitor Ma. Ana C.
Rivera.
8 Spelled as "Basobas"
in some parts of the record.
9 Appellant's Brief, pp.
10-71; rollo, pp. 284-345; signed by Atty. Katrina Legarda.
Citations omitted.
10 Qualifying her expertise,
Dra. Dayan stated that she had been a practising clinical psychologist for over
twenty (20) years. Currently, she is a professor at the De La Salle University.
Prior thereto, she was the head of the Psychology Department of the Assumption
College; a member of the faculty of Psychology of the Ateneo de Manila
University and St. Joseph's College; and the counseling psychologist of the
National Defense College. She obtained her bachelor's degree in psychology from
the University of the Philippines (UP), her Master of Arts in Clinical
Counseling from Ateneo, and her Ph.D. also from UP. She is the secretary of the
International Council of Psychologists, comprised of members from about 68
countries; and was the past president of the Psychological Association of the
Philippines. She is a member of the Forensic Psychology Association, the
American Psychological Association, and the ASEAN Counseling Association. She
authored the book entitled Energy Global Psychology (together
with Drs. Allen Tan and Allan Bernardo). Dra. Dayan also lectures at the
Philippine Judicial Academy, recently on the socio-demographic and
psychological profiles of families involved in domestic violence cases. On the
subject, she had conducted, for over a period of ten years, research on the
profiles of about 500 families involved in domestic violence.
11 Dr. Pajarillo obtained his
medical degree from the University of Santo Tomas and has been in the practice
of psychiatry for thirty-eight years. He honed his practice in psychiatry and
neurology during his stint with the Veterans Memorial Medical Centre.
Thereafter, he was called to active duty in the Armed Forces of the Philippines
and was assigned at the V. Luna Medical Center for twenty-six years. He was a
diplomate of the Philippine Board of Psychiatry; and a fellow of the Philippine
Board of Psychiatry and the Philippine Psychiatry Association. He was also a
member of the World Association of Military Surgeons; the Quezon City Medical
Society; the Cagayan Medical Society; and the Philippine Association of
Military Surgeons. He authored The Comparative Analysis of Nervous
Breakdown in the Philippine Military Academy from the Period 1954-1978, which
was presented twice in international congresses. He also authored "The
Mental Health of the Armed Forces of the Philippines 2000," which was
likewise published internationally and locally. On a Parke-Davis grant, he
published a medical textbook on the use of Prasepam; on an ER Squibb grant, he
was the first to use Enanthate (siquiline); and he published the use of the
drug Zopiclom in 1985-86. Prior to his retirement from government service, he
obtained the rank of Brigadier General. (TSN, February 9, 2001, pp. 6-9;
Exhibits "F"-"F-9"-Appellant (Bio-Data of Dr. Pajarillo).
12 This case was deemed
submitted for resolution on April 4, 2003, upon receipt by this Court of
appellee's Brief. Appellant's Brief was filed on December 2, 2002.
13 Appellant's Brief, rollo,
pp. 346-347. Original in upper case.
14 Caca v. Court of Appeals
and People, 341 Phil. 114, July 7,
1997; People v. Paragua, 326 Phil. 923, May 24, 1996; People v. Tanoy, 387 Phil. 750, May 12, 2000; People v. Magaro, 353
Phil. 862, July 2, 1998.
15 §15 of Art. VIII of the
Constitution provides:
"Sec. 15. (1) All cases or matters filed after the effectivity
of this Constitution must be decided or resolved within x x x three months for
all other lower courts.
"(2) A case or matter shall be deemed submitted for decision
or resolution upon the filing of the last pleading, brief, or memorandum required
by the Rules of Court or by the court itself."
16 333 Phil. 20, December 2,
1996, per Puno, J.
17 TSN, September 23, 1997,
pp. 11-12 & 14; TSN, November 12, 1997, pp. 29 & 33.
18 TSN, August 6, 1998, pp.
7-8.
19 People v. Sarabia, 376 Phil. 32, October 29, 1999.
20 Appellee's Brief, p. 26,
citing People v. De los Reyes, 229 SCRA 439, January 21, 1994. See also §5 of
Rule 110 of the New Rules of Criminal Procedure and People v.
Vergara, 221 SCRA 560, April 28, 1993.
21 People v. Rabanal, 349 SCRA 655, January 19, 2001; People v. Cario, 351 Phil.
644, March 31, 1998; People v. Baniel, 341 Phil. 471, July 15,
1997.
22 People v. Peralta, 350 SCRA 198, January 24, 2001.
23 See Ibn-Tamas v.
US, 477 A.2d 626, 1979 DC App. LEXIS 457; McLuckie v.
Abbott, 337 F.3d 1193; 2003 US App. LEXIS 15240; DePetris v.
Kuykendall, 239 F.3d 1057; 2001 US App. LEXIS 1062; State v.
Kelley, 478 A.2d 364 (1984); McMaugh v. State, 612 A.2d 725 (RI
1992); State v. Frost, 577 A.2d 1282 (NJ Super. Ct. App. Div.
1990); State v. Gallegos, 719 P.2d 1268 (NM Ct. App. 1986);
R. v. Lavallee (1990) 1 SCR; Reilly v. The Queen,
(1984) 2 SCR 396.
24 Symposium on Domestic
Violence. Article: "Providing Legal Protection for Battered Women: An
Analysis of State Statutes and Case Law," LEXSEE 21 Hofstra L. Rev. 801
(Summer 1993), 1161.
25 McMaugh v.
State, 612 A.2d 725, 731, quoting L. Walker, The Battered Woman, at
XV (1979).
26 People v.
Torres, 128 Misc2d, 129, 488 NYS2d 358; McMaugh v. State, 612 A.2d
725.
27 Walker, Lenore, The
Battered Woman Syndrome (1984), pp. 95-96. Dr. Walker, a clinical
psychologist, is an acknowledged expert on BWS in the United States. She is a
pioneer researcher in the field. In this book, she reports the results of her
study involving 400 battered women. Her research was designed to test
empirically the theories expounded in her earlier book, The Battered
Woman (1979). In 1989, she also wrote Terrifying Love: Why
Battered Women Kill and How Society Responds.
28 Walker, Terrifying
Love: Why Battered Women Kill and How Society Responds (Harper
Perennial, 1989), p. 42.
29 Ibid. See also R. v. Lavallee, supra;
Ibn-Tamas v. US, supra.
30 Ibid.
31 Ibid.
32 TSN, August 6, 1998, pp.
12-19.
33 Exhibits 1 & 1-A;
records, p. 44.
34 TSN, August 5, 1998, pp.
14-23, 27-31.
35 TSN, December 16, 1997, pp.
15-17 & 20-21.
36 TSN, May 22, 1998, pp.
2-20.
37 TSN (Arturo Basobas), July 21,
1997, pp. 13, 15 & 21; TSN (Jose Barrientos), December 15, 1997, pp. 17-20;
TSN (Junnie Barrientos), December 15, 1997, pp. 35-37; TSN (Ecel Arano), May
22, 1998, pp. 10 & 20.
38 TSN, August 6, 1998, pp.
19-32.
39 TSN, January 15, 2001, pp.
37-38.
40 Id., pp. 51-53.
41 Id., p. 36.
42 Exhibits
"G"-"G-3" - Appellant.
43 Ibid.
44 In R. v.
Lavallee, supra.
45 Ibid.
46 Fiona E. Raitt and M.
Suzanne Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome
Evidence, pp. 66-67 (Exh. D).
47 Walker, Terrifying
Love, p. 47.
48 TSN, January 15, 2001, p.
18.
49 Id., p. 20.
50 TSN, February 9, 2001, pp.
11-13.
51 Id., p. 14.
52 Walker, Terrifying
Love, p. 48.
53 Id., pp. 49-50.
54 Ibid.
55 Dr. Lenore Walker's
testimony before the court in Ibn-Tamas, supra.
56 Psychologist Nancy
Kaser-Boyd testifying as an expert on the battered woman syndrome in Depetris,
supra.
57 Dr. Lenore Walker's
testimony before the court in Ibn-Tamas, supra.
58 Her biological parents
lived separately.
59 State v. Kelly,
655 P.2d 1202, 1203 (1982).
60 "The case would rise
or fall on whether . . . [appellant] acted in actual fear of imminent harm from
her husband when she shot [or injured] him . . . ." Depetris v.
Kuykendall, supra. See also People v. Torres, 128
Misc2d 129, 488 NYS.2d 358.
61 People v. PO3 Langres, 375 Phil. 240, 258, October 13, 1999.
62 See also People v. Plazo, 350 SCRA 433, January 29, 2001; People v.
Cario, 351 Phil. 644, March 31, 1998; People v. Timblor, 348 Phil.
847, January 27, 1998.
63 People v. Saul, 372 SCRA 636, December 19, 2001.
64 People v. Galapin, 355 Phil. 212, July 31, 1998; People v. Panes, 343
Phil. 878, August 29, 1997.
65 State v.
Gallegos, 104 NM 247, 719 P.2d 1268, citing Eber, The Battered Wife's Dilemma:
To Kill or To Be Killed, 32 Hasting LJ 895, 928 (1981).
66 Id., citing State v. Walker, 40 Wash.App. 658, 700
P.2d 1168 (1985).
67 People v.
Saul, supra.
68 People v. Bato, 348 SCRA 253, December 15, 2000.
69 People v. Maquiling, 368 Phil. 169, June 21, 1999; People v. Discalsota, GR No. 136892, April 11, 2002.
70 Exhibits "B" et
seq. - Appellant, p. 10.
71 TSN, February 9, 2001, p.
19.
72 Id., pp. 15-17.
73 Id., p. 54.
74 "Art. 13. Mitigating
Circumstances. – The following are mitigating circumstances:
x x x x x x x x x
"9. Such illness of the offender as would diminish the
exercise of the will-power of the offender without however depriving him of the
consciousness of his acts."
75 "10. And, finally, any
other circumstances of a similar nature and analogous to those above
mentioned."
76 See People v. Javier, 370 Phil. 596, July 28, 1999; People v. Amit, 82
Phil. 820, February 15, 1949; People v. Francisco, 78 Phil. 694,
July 16, 1947; People v. Balneg, 79 Phil. 805, January 9, 1948.
77 People v. Lobino, 375 Phil. 1065, October 28, 1999; People v. Valles,
334 Phil. 763, January 28, 1997.
78 I Reyes, The
Revised Penal Code, p. 272 (1998).
79 According to Dr. Lenore
Walker, batterers commonly "escalate their abusiveness" when their
wives are pregnant.
80 Id., pp. 17-18.
81 People v. Cabande, 381 Phil. 889, February 8, 2000.
82 People v. Llanes, 381 Phil. 733, February 4, 2000.
83 People v.
Albao, 383 Phil. 873, March 2, 2000; People v. Aguilar, 354 Phil.
360, July 10, 1998.
84 TSN, August 6, 1998, pp.
26-32.
85 People v. Buluran, 382 Phil. 364, February 15, 2000; People v. Ereño,
383 Phil. 30, February 22, 2000.
86 People v. Cañete,
44 Phil. 478, February 5, 1923; People v. Narvaez, 206 Phil. 314,
April 20, 1983.
87 People v.
Aguilar, supra.
88 "Art. 64. Rules for
the application of penalties which contain three periods.
x x x x x x x x x
"5. When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances."
x x x x x x x x x
89 People v. Narvaez, 206 Phil. 314, April 20, 1983; Guevarra v. Court of
Appeals, 187 SCRA 484, July 16, 1990.
90 Basan v. People, 61 SCRA 275, November 29, 1974.
91 §5, Indeterminate Sentence
Law (Act 4103, as amended).
YNARES-SANTIAGO, J.:
1 People v. Genosa, G.R. No. 135981, 29 September 2000, 341 SCRA 493, 498.
2 TSN, August 6, 1998,
pp. 22-30; 47-49; 50-51.
3 Id., pp. 8-13,
18.
4 Exhibit 1,
Compilation of Exhibits, p. 44.
5 TSN, August 6, 1998,
pp. 12-13; 36-37.
6 Id., pp.
27-28.
7 Id., pp.
31-32.
8 TSN, August 5, 1998,
pp. 21-31.
9 TSN, January 15,
2001, pp. 38-40.
10 Id., pp.
74-75.
11 TSN, August 6, 1998,
pp. 22-25.
12 Id., pp.
47-49.
13 Id., pp.
25-26.
14 Id., p. 34.
15 Id., pp.
26-30.
16 Id., pp.
50-51.
17 G.R. No. 130654, 28 July 1999.
18 Supra, at
581-582.
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