SECOND DIVISION

G.R. No. L-67422-24 October 31, 1984

FERNANDO VALDEZ alias WILSON VALDEZ, petitioner, vs.HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan, North Cotabato, respondents.

ABAD SANTOS, J.:ñé+.£ªwph!1

This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City by speed airmail but was received only on April 26, 1984. The petitioner is accused of rape in three cases — Criminal Case Nos. 13, 14 and 15 — filed in the court presided by the respondent judge. The private complainant is the same in all the three cases but the rapes were alleged to have been committed on different dates, namely: February 10, 1982, March 17, 1982 and April 10, 1982.

The petition seeks to annul the proceedings which were conducted by the respondent judge and to disqualify him from the case. Because the verified petition imputed serious irregularities to the respondent judge, this Court issued a temporary restraining order on May 21, 1984, restraining him from further proceeding with Criminal Case Nos. 13, 14 and 15.

In the comment which the respondent judge was required to submit, he said that he had already decided the three cases. (Petitioner Wilson Valdez was convicted of rape in each of the three cases and was sentenced to three reclusion perpetua plus indemnity.) The decision is dated April 2, 1984, but the petitioner claims that it was promulgated on May 3, 1984, without the presence of his counsel and even of the Fiscal; that no notice was issued in respect of the promulgation; and that no copy of the decision was given to the defense counsel of record.

The case was set for hearing on August 6, 1984, and thereafter the Court issued a resolution which reads: têñ.£îhqwâ£

At the hearing this morning the following appeared: Attys. Jose V. Juan and Antonio T. Nicolas of the Special Appealed Cases Division, Citizens' Legal Assistance Office, Ministry of Justice, Padre Faura, Manila, for the petitioner; respondent Judge Gregorio U. Aquilizan on his own behalf; and North Cotabato Provincial Fiscal Aquiles Narajos who brought the record of Criminal Case Nos. 13, 14 and 15 in the sala of the respondent judge.

Counsels for the petitioner mentioned several irregularities said to have been committed by the respondent judge in the handling of the case above-mentioned. Resort to the record proved to be fruitless because it was grossly deficient.

Counsels for the petitioner are hereby given ten (10) days from notice hereof to submit a memorandum specifying the irregularities said to have been committed by the respondent judge with supporting evidence. A copy of the memorandum shall be furnished to the respondent judge who is required to answer the same point by point within ten (10) days from receipt. (Rollo, p. 127.)

The memoranda are now before this Court and the immediate reaction is that the petition is highly impressed with merit.

In the hearing of the three criminal cases on May 26, 1983, the private complainant was to be cross- examined inasmuch as her direct examination had been finished at the previous hearing on April 7, 1983. On May 26, the private prosecutor, Atty. Norberto Ela, was absent. Thereafter, the respondent judge stated: "It appears in the records that the complaining witness is still under cross. It is the Honorable Judge who is examining her ... (Addressing the witness) During the last hearing of this case, the Honorable Court reserved its right to cross examine you on your testimony." And the respondent judge examined the witness but the examination is better described as direct rather than cross. Witness the following: têñ.£îhqwâ£

COURT: ... After going over the records of the cases and the supposed exhibits, you mentioned about a pair of scissors used to intimidate you, coerced and forced by the accused, by pressing the same at your left side?

A. Yes, your Honor.

COURT: Proceed Fiscal.

FISCAL FULVADORA:

Q You mentioned about a pair of scissors used by the accused. Showing to you this scissors, what relation is this scissors which was used by the accused in threatening you on February 10, 1982?

A Yes, sir, this is the one being used by him.

COURT:

Q Is this the very scissors that you saw when he pressed it?

A Yes, your Honor.

Q When was this used by the accused Wilson Valdez?

A On February 10, 1982, your Honor.

FISCAL FULVADORA:

May we request that this scissors Identified by the witness be marked as Exh. "F", your Honor.

COURT: têñ.£îhqwâ£

Mark it.

Q Please demonstrate to the Court how this Exh. "F" was used by the accused in intimidating you?

A (Witness demonstrating to the Court)

The witness demonstrating to the supposed victim the pressing of the pointed scissors at the left side abdomen.

Q Did he also use that during the accord rape he committed

A Yes your Honor.

Q About the third time, he use also?

A Yes your Honor. (TSN, May 26, 1983.)

To be sure a trial judge has the right, nay even the duty, to address questions to witnesses. But the questions should be clarificatory; they should not build the case for any of the adversaries.

On June 23, 1983, a hearing was scheduled. The transcript for that day shows that Fiscal Camilo Fulvadora appeared for the prosecution but private prosecutor Ela, was absent. Also absent was Atty. Jorge Zerrudo, counsel for the accused. The transcript does not show whether or not the accused was brought to court. Notwithstanding the absence of counsel for the accused and probably the accused himself, the respondent judge continued his "cross-examination" of the private complainant. The respondent judge explained his behaviour thus:têñ.£îhqwâ£

WHEREFORE, premises considered, in view of the absence of Atty. Zerrudo who in spite of due notice in open court, during the last hearing of this case and without justifiable reason failed to appear, however, for the sake of justice in order not to prejudice the right of the accused as the complaining witness was on cross- examination, stated the witness is being cross examined by the court in order to get an illustration of certain facts needed by all defense here or the prosecution of the accused Wilson Valdez alias Willy. (TSN, June 23, 1983.)

In his memorandum the respondent judge claims that he "did not proceed with the trial but merely sought clarifications on vital aspects taken up in the hearing of April 7, 1983."

The explanation of the respondent judge is belied by the transcript which shows that he asked the private complainant searching questions and this is reflected on pages 4 to 12 of the transcript.

The statement of the respondent judge that he wanted to protect the right of the accused to a speedy trial is not appreciated. He "protected" the rights of the accused by holding a trial in the absence of the latter's counsel. If an accused has a "protector" like the respondent judge, there is no need for a fiscal or a private prosecutor. It may not be amiss to state in this connection that the accused did not complain of delay in the trial of his case probably because he was not there. At any rate if the respondent judge had wanted to expedite the trial he should have appointed a temporary counsel for the accused.

The hearing on the three cases was resumed on August 18, 1983. In the meantime, Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because he wanted an Ilocano lawyer to represent him for better communication. On that day. the private complainant was still on cross-examination. Without any request from the parties, the respondent judge decided to hold the hearing in his chamber "due to delicadeza." Present in the chamber were counsel for the accused, the fiscal and the stenographer only; the accused was not allowed to go inside. têñ.£îhqwâ£

The respondent judge claims, however, "that the accused together with his guard were at the door of a make-shift room, so-called judge's chamber." This might well have been the case but the accused was entitled as of right to be inside the room because it was his liberty and honor which were at stake. On August 31, 1983, the respondent judge announced, "We will hear this in chamber." And then the following took place: têñ.£îhqwâ£

ATTY. RUIZ:

Now, last time this case was presented and was scheduled for hearing inside the chamber. Counsel for the accused requested that the accused be given chance to confront the complaining witness but this, your honor was denied so at this instance it is reiterated that the accused be given again a chance to be present during the investigation (sic).

COURT:têñ.£îhqwâ£

Fiscal.

FISCAL CAMILO FULVADORA: têñ.£îhqwâ£

With the sound discretion of the Honorable Court.

COURT: têñ.£îhqwâ£

Denied. (TSN, August 31,1983.)

On February 7, 1984, the following took place:

ATTY. RUIZ:

Your honor, we are still in the process of direct examination for the accused. We are recalling the accused in the witness stand. I understand your honor last time, due to lack of material time, we requested for a resetting of these three cases inasmuch as the matter whether to give the accused for the meantime your honor, I am petitioning that he must be recalled and placed in the witness stand.

COURT: têñ.£îhqwâ£

It is discretionary on the part of the Judge. What can you say Fiscal?

FISCAL FULVADORA:

I remembered right that it is the purpose for the trial, that the manifestation of the defense counsel that he is through with the testimony of the witness, he requested that the prosecution will be continued in some other time.

ATTY. RUIZ:

We concur with the Provincial Fiscal but prior, we are petitioning the Honorable Court to recall the witness for further direct examination and I am requesting that will have to continue the proceeding. We are convinced with the observation of the Court that it is discretionary of the Honorable Court but this representation however, we would like to request and reiterate and manifest for the petition that he be recalled. It is not the intention of the defense counsel, your honor, to delay the speedy termination of these cases. As a counsel for the accused, I would like to reiterate that the accused be recalled to the witness stand.

FISCAL FULVADORA:

The Honorable Court will decide on that part of presentation of the accused, whether to grant it or not the manifestation.

COURT: têñ.£îhqwâ£

How many questions are you asking?

ATTY. RUIZ:

Due to lack of material time, the three cases, I forgot to ask few questions regarding the evidences or exhibits which are the panty, knife, and scissors, in the direct examination in that, it was overlooked in the part of this representation that the three after presented some of the exhibits per prosecution, were not questioned.

FISCAL FULVADORA:

It is not the matter of forgotting the exhibits of the counsel, there are time given to present this trial. I remembered that he propounded few questions for the defense and he manifested that he is through in his direct examination and it is my time to cross the testimony of the accused.

ATTY. RUIZ:

I forgot, before the Honorable Court that this representation have reasons of overlooking why I was not able to question to all the matters considering of the lack of material time and that there are other cases waiting which are ready for the hearing. It is the discretionary on the part of the Honorable Court specially that the criminal penalty is death and while the Provincial Fiscal having further presentation of exhibits at the beginning of the case, where the questioning we were already finished, yet the Provincial Fiscal continued separately to the presentation of other cases.

COURT': têñ.£îhqwâ£

Denied.

Under cross. (TSN Feb. 7, 1984.)

It is obvious from the foregoing that the respondent judge did not manifest the requisite cold impartiality which the petitioner deserved.

The petition which questions the actuations of the respondent judge and seeks his disqualification was received by him on March 29, 1984. Prudence dictated that he refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases on April 2, 1984, and promulgating his decision on May 3 of the same year. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner.

WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13, 14 and 15 of the respondent judge is set aside; the aforesaid cases shall be transferred to Branch XVII of the Regional Trial Court in Kidapawan for trial de novo which shall also resolve the petitioner's motion for release on recognizance under Sec. 191 of P.D. No. 603. No costs.

SO ORDERED.1äwphï1.ñët

RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL.,x ----------------------------------- xRE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAO INTO A SPECIAL COURT HANDLING

A.M. No. 10-11-5-SC

A.M. No. 10-11-6-SC

Present:

CORONA,* C.J.,CARPIO,CARPIO MORALES,VELASCO, JR.,LEONARDO-DE CASTRO,BRION,PERALTA,

THIS CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND FOR THE PEOPLE TO WITNESS THE TRIAL OF THE DECADE TO MAKE IT TRULY PUBLIC AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION,x ---------------------------------x

RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF THE MAGUINDANAO MASSACRE TRIAL.

BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ,MENDOZA, andSERENO, JJ.

Promulgated:

June 14, 2011

A.M. No. 10-11-7-SC

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

R E S O L U T I O N CARPIO MORALES, J.: On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the most brutal killing of journalists in recent history, the tragic incident which came to be known as the Maguindanao Massacre spawned charges for 57 counts of murder and an additional charge of rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-09-162216-31, Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu

Andal Ampatuan, Jr., et al. Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) of Quezon City inside Camp Bagong Diwa in Taguig City. Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,[1] individual journalists[2] from various media entities, and members of the academe[3] filed a petition before this Court praying that live television and radio coverage of the trial in these criminal cases be allowed, recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and the use of devices.[4] The Court docketed the petition as A.M. No. 10-11-5-SC. In a related move, the National Press Club of the Philippines[5] (NPC) and Alyansa ng Filipinong Mamamahayag[6] (AFIMA) filed on November 22, 2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao Massacre trial to relieve it of all other pending cases and assigned duties, and allow the installation inside the courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the television monitors outside the court.[7] The Court docketed the petition as A.M. No. 10-11-6-SC. President Benigno S. Aquino III, by letter of November 22, 2010[8] addressed to Chief Justice Renato Corona, came out in support of those who have petitioned [this Court] to permit television and radio broadcast of the trial." The President expressed earnest hope that [this Court] will, within the many considerations that enter into such a historic deliberation,

attend to this petition with the dispatch, dispassion and humaneness, such a petition merits.[9] The Court docketed the matter asA.M. No. 10-11-7-SC. By separate Resolutions of November 23, 2010,[10] the Court consolidated A.M. No. 10-11-7-SC with A.M. No. 10-11-5-SC. The Court shall treat in a separate Resolution A.M. No. 10-11-6-SC. Meanwhile, various groups[11] also sent to the Chief Justice their respective resolutions and statements bearing on these matters. The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC. The President, through the Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply of January 18, 2011 and January 20, 2011. Ampatuan also filed a Rejoinder of March 9, 2011. On Broadcasting the Trial of the Maguindanao Massacre Cases Petitioners seek the lifting of the absolute ban on live television and radio coverage of court proceedings. They principally urge the Court to revisit the 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case[12]and the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada[13] which rulings, they contend, violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand when regulation is a viable alternative. Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media coverage due to the gruesomeness of the crime, prominence of the accused, and the number of media personnel killed. They inform that reporters are being frisked and searched for cameras, recorders, and cellular devices upon entry, and that under strict orders of the trial court against live broadcast coverage, the number of media practitioners allowed inside the courtroom has been limited to one reporter for each media institution. 

The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter[14] to Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the proceedings of the Maguindanao Massacre cases. Judge Solis-Reyes replied, however, that matters concerning media coverage should be brought to the Courts attention through appropriate motion.[15] Hence, the present petitions which assert the exercise of the freedom of the press, right to information, right to a fair and public trial, right to assembly and to petition the government for redress of grievances, right of free access to courts, and freedom of association, subject   to regulations to be issued by the Court . The Court partially GRANTS pro hac vice petitioners prayer for a live broadcast of the trial court proceedings, subject to the guidelines which shall be enumerated shortly. Putts Law[16] states that technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand. Indeed, members of this Court cannot strip their judicial robe and don the experts gown, so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom. A decade after Estrada and a score after Aquino, the Court is once again faced with the same task of striking that delicate balance between seemingly competing yet certainly complementary rights. The indication of serious risks posed by live media coverage to the accuseds right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information. The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations. In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press

freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings.Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases. The basic principle upheld in Aquino is firm ─ [a] trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment[, and t]o so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. The observation that [m]assive intrusion of representatives of the news media into the trial itself can so alter and destroy the constitutionally necessary atmosphere and decorum stands. 

The Court concluded in Aquino: 

Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. Accordingly, in order to protect the parties' right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated.[17]

 

 The Court had another unique opportunity in Estrada to revisit the question of live radio and television coverage of court proceedings in a criminal case. It held that [t]he propriety of granting or denying the instant petition involve[s] the weighing

out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. The Court disposed: 

The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. SO ORDERED.[18]

 In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13, 2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for documentary purposes, under the following conditions:

 x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.[19]

  

Petitioners note that the 1965 case of Estes v. Texas[20] which Aquino and Estrada heavily cited, was borne out of the dynamics of a jury system, where the considerations for the possible infringement of the impartiality of a jury, whose members are not necessarily schooled in the law, are different from that of a judge who is versed with the rules of evidence. To petitioners, Estes also does not represent the most contemporary position of the United States in the wake of latest jurisprudence[21] and statistical figures revealing that as of 2007 all 50 states, except the District of Columbia, allow television coverage with varying degrees of openness. Other jurisdictions welcome the idea of media coverage. Almost all the proceedings of United Kingdoms Supreme Court are filmed, and sometimes broadcast.[22] The International Criminal Court broadcasts its proceedings via video streaming in the internet.[23]

 On the media coverages influence on judges, counsels and witnesses, petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion. They point out errors of generalization where the conclusion has been mostly supported by studies on American attitudes, as there has been no authoritative study on the particular matter dealing with Filipinos. Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the totality of circumstances test, applied in People v. Teehankee, Jr.[24] and Estrada v. Desierto,[25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. Moreover, an aggrieved party has ample legal remedies. He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right. As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial

when necessary. The trial court may likewise exercise its power of contempt and issue gag orders. One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases the private complainants/families of the victims and other witnesses inside the courtroom. On public trial, Estrada basically discusses: 

An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.[26] (underscoring supplied)   

Even before considering what is a reasonable number of the public who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each.  The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place

inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the following guidelines toward addressing the concerns mentioned in Aquino and Estrada: 

(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting. (b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. 

No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court. (c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating should not be visible. A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. 

The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment.(d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. 

The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches.

 If the premises outside the courtroom lack space for the set-up

of the media entities facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds.

 At all times, exclusive access by the media entities to the real-

time audio-visual recording should be protected or encrypted. (e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court[27] applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). 

The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both. 

(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the days proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded. (g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject to the contempt power of the court; (h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court; (i) The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. (j) The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities.      (k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility,

availability and affordability of the latest technology that would meet the herein requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. (l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines.

 Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines. WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines herein outlined. SO ORDERED.  

CONCHITA CARPIO MORALESAssociate Justice

Supreme Court

Manila

 

FIRST DIVISION

 

HO WAI PANG, G.R. No. 176229

Petitioner,

Present:

CORONA, C.J., Chairperson,

- versus - LEONARDO-DE CASTRO,

BERSAMIN,

DEL CASTILLO, and

VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. October 19, 2011

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

 

 

D E C I S I O N

 

 

DEL CASTILLO, J.:

 

Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made during such investigation.[1] The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation.[2]

 

Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming the April 6, 1995 Decision[4] of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No. 91-1592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue,[5] Wu Hing Sum, Tin San Mao[6] and Kin San Ho[7]guilty beyond reasonable doubt for violation of Section 15, Article III[8] of Republic Act (R.A.) No. 6425 otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA Resolution[9] denying the motion for reconsideration thereto.

 

Factual Antecedents

 

On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of the Express Lane. Cinco examined the baggages of each of the 13 passengers as their turn came up.From the first traveling bag, she saw

few personal belongings such as used clothing, shoes and chocolate boxes which she pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead of chocolates, what she saw inside was white crystalline substance contained in a white transparent plastic. Cinco thus immediately called the attention of her immediate superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered.

 

At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of Law Ka Wang was first found to contain three chocolate boxes. Next was petitioners bag which contains nothing except for personal effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sums bag followed and same yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused.

 

NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate boxes.According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes at the NAIA using the Mandelline Re-Agent Test.[10] The result of his examination[11] of the white crystalline substance yielded positive for methamphetamine hydrochloride or shabu. Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the Inbond Section.

 

The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its total weight is 31.1126 kilograms and that the representative samples were positive for methamphetamine hydrochloride.[12] Out of the 13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as against petitioner and his five co-accused.

 

Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for Reinvestigation[13] which the trial court granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the filing of a single Amended Information[14] under Criminal Case No. 91-1592 and to the withdrawal of the other Informations.[15] The Amended Information reads:

 

That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less, of METHAMPHETAMINE HYDROCHLORIDE, also popularly known as SHABU, a regulated drug.

 

CONTRARY TO LAW.[16]

 

 

After pleading not guilty to the crime charged,[17] all the accused testified almost identically, invoking denial as their defense. They claimed that they

have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel agency.

 

Ruling of the Regional Trial Court

 

On April 6, 1995, the RTC rendered a Decision[18] finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the decretal portion of which reads:

 

WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT YUE, HO WAI PANG, WU HING SUM, TIN SUN MAO, AND KIN SAN HO (HO KIN SAN) GUILTY of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS (P30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of life imprisonment provided in Republic Act No. 6425. The fine of P30,000.00 for each accused is imposed pursuant to R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot be imposed since the offense was committed prior to the effectivity of R.A. No. 7659.

 

Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG.

 

SO ORDERED.[19]

 

 

From this judgment, all the accused appealed to this Court where the case records were forwarded to per Order of the RTC dated May 10, 1995.[20] Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of appeal.[21] This Court, after being satisfied that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their respective appeals through a Resolution dated June 18, 1997.[22] Per Entry of Judgment, [23] said Resolution became final and executory on July 7, 1997. Consequently, petitioner was the only one left to pursue his appeal.

 

Petitioner filed his Brief[24] on April 6, 1998 while the brief[25] for the respondent People of the Philippines was filed on August 27, 1998 through the Office of the Solicitor General (OSG). Per Resolution[26] dated August 30, 2004, this Court referred the appeal to the CA for proper disposition and determination pursuant to this Courts ruling in People v. Mateo.[27]

 

Ruling of the Court of Appeals

 

On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence sufficient to warrant his conviction. The CA also rebuked petitioners claim that he was deprived of his constitutional and statutory right to confront the witnesses against him. The CA gave credence to

the testimonies of the prosecution witnesses and quoted with favor the trial courts ratiocination regarding the existence of conspiracy among the accused.

 

Undeterred, petitioner filed a Motion for Reconsideration[28] which the CA denied in its Resolution[29] dated January 16, 2007.

 

Hence, this petition for review on certiorari anchored on the following grounds:

 

I

WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION.

 

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

 

 

 

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY.

 

 

IV

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY THE CONSTITUTION.[30]

 

 

 

OUR RULING

 

 

The petition lacks merit.

 

Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions of the accused as against himself.

 

 

Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer during the custodial investigation. He claimed that he was not duly informed of his rights to

remain silent and to have competent counsel of his choice.Hence, petitioner faults the CA in not excluding evidence taken during such investigation.

 

While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and the NBI in violation of his constitutional right under Section 12[31] of Article III of the Constitution, we must not, however, lose sight of the fact that what said constitutional provision prohibits as evidence are only confessions and admissions of the accused as against himself. Thus, inAquino v. Paiste,[32] the Court categorically ruled that the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if obtained or taken in the course of custodial investigation.

 

In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from petitioner during his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its Decision on the testimonies of the prosecution witnesses and on the existence of the confiscated shabu. As the Court held in People v. Buluran,[33] [a]ny allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction. Hence, petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration.

 

Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen Ming[34] to exculpate himself from the crime charged. Though there are

semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accuseds act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the sole testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the judgment of conviction, the Court noted that said examiners testimony was not corroborated by other prosecution witnesses.

 

On the other hand, petitioners conviction in the present case was on the strength of his having been caught in flagrante delictotransporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People v Dela Cruz,[35] [n]o rule exists which requires a testimony to be corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction.

 

Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the two cases.Cases

must be decided based on their own unique facts and applicable law and jurisprudence.

 

Petitioner was not denied of his right to confrontation.

 

Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to confrontation, viz:

 

Section 14. x x x

 

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

 

 

Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and to refute it by cross-examination or by his own countervailing evidence.

 

In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the prosecution when his counsel cross-examined them. It is petitioners call to hire an interpreter to understand the proceedings before him and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioners right to confront the witnesses against him.

 

We agree with the OSG.

 

As borne out by the records, petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him.Still and all, the important thing is that petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility. The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution. In People v. Libo-on,[36] the Court held:

 

The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-examination, so that if the opportunity for cross-examination has been secured, the function and test of confrontation has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination.

 

 

Under the circumstances obtaining, petitioners constitutional right to confront the witnesses against him was not impaired.

 

Conspiracy among the accused was duly established.

 

 

Respecting the third assigned error, we uphold the trial courts finding of conspiracy which was quoted by the appellate court in its assailed Decision, and which we once again herein reproduce with approval:

 

On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with the travel agency and [that] Law Ka Wang was the one who received the personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for about two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense charged [c]ould have been perpetrated only

through an elaborate and methodically planned conspiracy with all the accused assiduously cooperating and mutually helping each other in order to ensure its success.[37]

 

 

We find no cogent reason to reverse such findings.

 

Conspiracy is [the] common design to commit a felony.[38] [C]onspiracy which determines criminal culpability need not entail a close personal association or at least an acquaintance between or among the participants to a crime.[39] It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design.[40] The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole as we ruled in People v. Mateo, Jr.[41] Here, it can be deduced from petitioner and his co-accuseds collective conduct, viewed in its totality, that there was a common design, concerted action and concurrence of sentiments in bringing about the crime committed.

 

Petitioners guilt was proved beyond reasonable doubt.

 

 

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two chocolate boxes.

 

Petitioners contentions fail to persuade.

 

True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes but only personal effects in petitioners bag.[42] Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes from petitioners bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate boxes from petitioners bag when they were at the ICU.[43] To us, this slight clash in Cincos statements neither dilute her credibility nor the veracity of her testimony.

 

The trial courts words on this matter when it resolved petitioners Demurrer to Evidence in its Order[44] of February 16, 1993 is quite enlightening. Thus

 

In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU, after the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They are facts from the personal perception of the witness and out of her personal knowledge. Neither is it conjectural.[45]

 

 

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts.The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered.[46] Also, where there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the accused, identification should be given full weight. Here, petitioner presented no evidence or anything to indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full faith and credit.

 

Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the very act of transporting, along with his co-accused, shabu into the country. In stark contrast, the evidence for the defense consists mainly of denials.

 

Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel agency. However, it bears stressing that the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials, petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. It is basic that affirmative testimony of persons who are eyewitnesses of the events or facts asserted easily overrides negative testimony.[47]

 

All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended.

 

Penalty

 

As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683.[48] The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659[49] further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 toreclusion perpetua to death and a fine ranging from P500,000.00 to P10 million. On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved.

 

The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment.

 

We agree. In People v. Doroja,[50] we held:

 

In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x.

 

 

And, since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect,[51] the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him.

 

WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED.

 

SUPREME COURTManila

THIRD DIVISION

G.R. No. 185527               July 18, 2012

HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners, vs.THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL., Respondents.

D E C I S I O N

PERLAS-BERNABE, J.:

The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve testimonial evidence and prove its case despite the unavailability of its witness. It cannot, however, give license to prosecutorial indifference or unseemly involvement in a prosecution witness' absence from trial. To rule otherwise would effectively deprive the accused of his fundamental right to be confronted with the witnesses against him.

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioners seek to nullify and set aside the February 19, 2008 Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99383, which reversed the September 12, 2006 Order3 issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case No. 06-114844 and upheld the grant of the prosecution’s motion to take the testimony of a witness by oral depositions in Laos, Cambodia.

Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the Metropolitan Trial Court (MeTC) of Manila for Other Deceits under Article 318 of the Revised Penal Code (RPC) docketed as Criminal Case No. 396447. The Information4 dated September 24, 2003, later amended5 on September 14, 2004, reads:

"That sometime in August 1996, in the City of Manila, Philippines, the said accused, conspiring, confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud Highdone Company Ltd. Represented by Li Luen Ping, in the following manner, to wit: all said accused, by means of false manifestations and fraudulent representations which they made to said Li Luen Ping to the effect that they have chattels such as machinery, spare parts, equipment and raw materials installed and fixed in the premises of BGB Industrial Textile Mills Factory located in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan, executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd. Representing that the said deed is a FIRST MORTGAGE when in truth and in fact the accused well knew that the same had been previously encumbered, mortgaged and foreclosed by CHINA BANK CORPORATION as early as September 1994 thereby causing damage and prejudice to said HIGHDONE COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less."

Upon arraignment, petitioners pleaded not guilty to the charge.

The prosecution's complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled from his home country back to the Philippines in order to attend the hearing held on September 9, 2004. However, trial dates were subsequently postponed due to his unavailability.

On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition6 of Li Luen Ping, alleging that he was being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor's advice, he could not make the long travel to the Philippines by reason of ill health.

Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion after the prosecution complied with the directive to submit a Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC denied,9 prompting petitioners to file a Petition for Certiorari10 before the RTC.

On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void.11 The RTC held that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily to the case since there is a specific provision in the Rules of Court with respect to the taking of depositions of prosecution witnesses in criminal cases, which is primarily intended to safeguard the constitutional rights of the accused to meet the witness against him face to face.

Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006,12 the prosecution elevated the case to the CA.

On February 19, 2008, the CA promulgated the assailed Decision which held that no grave abuse of discretion can be imputed upon the MeTC for allowing the deposition-taking of the complaining witness Li Luen Ping because no rule of procedure expressly disallows the taking of depositions in criminal cases and that, in any case, petitioners would still have every opportunity to cross-examine the complaining witness and make timely objections during the taking of the oral deposition either through counsel or through the consular officer who would be taking the deposition of the witness.

On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence, this petition alleging that –

I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE DEPOSITION OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA.

II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO FACE.

III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL COURT IN APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL CASES.

IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE LAW OR JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW OF GRAVE ABUSE OF DISCRETION.

We rule in favor of petitioners.

The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is Covered Under Section 15, Rule 119.

The examination of witnesses must be done orally before a judge in open court.13 This is true especially in criminal cases where the Constitution secures to the accused his right to a public trial and to meet the witnessess against him face to face. The requirement is the "safest and most satisfactory method of investigating facts" as it enables the judge to test the witness' credibility through his manner and deportment while testifying.14 It is not without exceptions, however, as the Rules of Court recognizes the conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct court testimony.

Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses – both for the benefit of the defense, as well as the prosecution. The Court's ruling in the case of Vda. de Manguerra v. Risos15 explicitly states that –

"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses." (Underscoring supplied)16

The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any

Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party.17

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The pertinent provision reads thus:

SEC. 15. Examination of witness for the prosecution. – When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

Since the conditional examination of a prosecution witness must take place at no other place than the court where the case is pending, the RTC properly nullified the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the Philippine consular official in Laos, Cambodia. We quote with approval the RTC's ratiocination in this wise:

The condition of the private complainant being sick and of advanced age falls within the provision of Section 15 Rule 119 of the Rules of Court. However, said rule substantially provides that he should be conditionally examined before the court where the case is pending. Thus, this Court concludes that the language of Section 15 Rule 119 must be interpreted to require the parties to present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the judge presiding at the hearing, rather than by means of deposition. No where in the said rule permits the taking of deposition outside the Philippines whether the deponent is sick or not.18 (Underscoring supplied)

Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness'

testimony is crucial to the prosecution's case against the accused. This is the import of the Court's ruling in Vda. de Manguerra19 where we further declared that –

While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case, we cannot disregard the rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.20 (Underscoring supplied)

It is argued that since the Rules of Civil Procedure is made explicitly applicable in all cases, both civil and criminal as well as special proceedings, the deposition-taking before a Philippine consular official under Rule 23 should be deemed allowable also under the circumstances.

However, the suggested suppletory application of Rule 23 in the testimonial examination of an unavailable prosecution witness has been categorically ruled out by the Court in the same case of Vda. de Manguerra, as follows:

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure.

Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise." (Underscoring supplied)

The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of the Accused to Public Trial and Confrontation of Witnesses

The CA took a simplistic view on the use of depositions in criminal cases and overlooked fundamental considerations no less than the Constitution secures to the accused, i.e., the right to a public trial and the right to confrontation of witnesses. Section 14(2), Article III of the

Constitution provides as follows:

Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied)

In dismissing petitioners' apprehensions concerning the deprivation of their constitutional rights to a public trial and confrontation, the CA opined that petitioners would still be accorded the right to cross-examine the deponent witness and raise their objections during the deposition-taking in the same manner as in a regular court trial.

We disagree. There is a great deal of difference between the face-to- face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a

foreign place outside the courtroom in the absence of a trial judge. In the aptly cited case of People v. Estenzo,21 the Court noted the uniqueness and significance of a witness testifying in open court, thus:

"The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority, "demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage of the witness before the judge, and it is this – it enables the judge as trier of facts "to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. x x x"22 (Underscoring supplied)1âwphi1

The right of confrontation, on the other hand, is held to apply specifically to criminal proceedings and to have a twofold purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination, and (2) to allow the judge to observe the deportment of witnesses.23 The Court explained in People v. Seneris24that the constitutional requirement "insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury charge; it forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the truth; and it enables the court to observe the demeanor of the witness and assess his credibility."25

As the right of confrontation is intended "to secure the accused in the right to be tried as far as facts provable by witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-examination,"26 it is properly viewed as a guarantee against the use of unreliable testimony in criminal trials. In the American case of Crawford v. Washington,27 the US Supreme Court had expounded on the procedural intent of the confrontation requirement, thus:

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's right to confront witness face to face protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability". Certainly, none of the authorities discussed above acknowledges any general reliability exception to the common-law rule.

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." (Underscoring supplied)

The Webb Ruling is Not on All Fours with the Instant Case

The CA found the frail and infirm condition of the prosecution witness as sufficient and compelling reason to uphold the MeTC Orders granting the deposition-taking, following the ruling in the case of People v. Webb28 that the taking of an unavailable witness' deposition is in the nature of a discovery

procedure the use of which is within the trial court's sound discretion which needs only to be exercised in a reasonable manner and in consonance with the spirit of the law.29

But the ruling in the cited case is not instantly applicable herein as the factual settings are not similar.1âwphi1 The accused in the Webb case had sought to take the oral deposition of five defense witnesses before a Philippine consular agent in lieu of presenting them as live witnesses, alleging that they were all residents of the United States who could not be compelled by subpoena to testify in court. The trial court denied the motion of the accused but the CA differed and ordered the deposition taken. When the matter was raised before this Court, we sustained the trial court's disallowance of the deposition-taking on the limited ground that there was no necessity for the procedure as the matter sought to be proved by way of deposition was considered merely corroborative of the evidence for the defense.30

In this case, where it is the prosecution that seeks to depose the complaining witness against the accused, the stringent procedure under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of the accused to due process.

Finally, the Court takes note that prosecution witness Li Luen Ping had managed to attend the initial trial proceedings before the MeTC of Manila on September 9, 2004. At that time, Li Luen Ping's old age and fragile constitution should have been unmistakably apparent and yet the prosecution failed to act with zeal and foresight in having his deposition or testimony taken before the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In fact, it should have been imperative for the prosecution to have moved for the preservation of Li Luen Ping's testimony at that first instance given the fact that the witness is a non-resident alien who can leave the Philippines anytime without any definite date of return. Obviously, the prosecution allowed its main witness to leave the court's jurisdiction without availing of the court procedure intended to preserve the testimony of such witness. The loss of its cause is attributable to no other party.

Still, even after failing to secure Li Luen Ping's conditional examination before the MeTC prior to said witness' becoming sick and unavailable, the prosecution would capitalize upon its own failure by pleading for a liberal application of the rules on depositions. It must be emphasized that while the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition.31

Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of an unavailable prosecution witness when it upheld the trial court's order allowing the deposition of prosecution witness Li Luen Ping to take place in a venue other than the court where the case is pending. This was certainly grave abuse of discretion.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated February 19, 2008 and the Resolution dated November 28, 2008 of the Court of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the Regional Trial Court which disallowed the deposition-taking in Laos, Cambodia is REINSTATED.

SO ORDERED.

[G.R. No. 132601. October 12, 1998]

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and THE DIRECTOR OF THE BUREAU OF CORRECTIONS, THE EXECUTIVE JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 104, respondents.

D E C I S I O N

PER CURIAM:

On June 25, 1996, this Court affirmed[1] the conviction of petitioner Leo Echegaray y Pilo for the crime of rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death penalty for the said crime.

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of Republic Act No. 7659[2] (the death penalty law) and the imposition of the death penalty for the crime of rape.

On February 7, 1998, this Court denied[3] petitioner's Motion for Reconsideration and Supplemental Motion for Reconsideration with a finding that Congress duly complied with the requirements for the reimposition of the death penalty and therefore the death penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules")[6] and directed the Director of the Bureau of Corrections to prepare the Lethal Injection Manual.[7]

On March 2, 1998, petitioner filed a Petition[8] for Prohibition, Injunction and/or Temporary Restraining Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per se as well as by reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the Philippines' obligations under international covenants, (d) an undue delegation of legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary of Justice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court [9] to Amend and Supplement Petition with the Amended and Supplemental Petition[10] attached thereto, invoking the additional ground of violation of equal protection, and impleading the Executive Judge of the Regional Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to

enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, to require the respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition, and required respondents to COMMENT thereon within ten (10) days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo Order, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action to carry out petitioner's execution until the petition is resolved.

On March 16, 1998, the Office of the Solicitor General[11] filed a Comment (On the Petition and the Amended Supplemental Petition)[12] stating that (1) this Court has already upheld the constitutionality of the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the questioned rules, is constitutional, lethal injection being the most modern, more humane, more economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary of Health and the Bureau of Corrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible period of ten days from notice.

On March 25, 1998, the Commission on Human Rights[13] filed a Motion for Leave of Court to Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to Intervene and/or Appear as Amicus Curiae[15] alleging that the death penalty imposed under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking (a) Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights."; (b) Article III of theUniversal Declaration of Human Rights which states that "Everyone has the right to life, liberty and security of person," and Article V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular, Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics showing that as of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice that they have not executed anyone during the past ten (10) years or more, or in that they have made an international commitment not to carry out executions, for a total of 99

countries which are total abolitionists in law or practice, and 95 countries as retentionists; [16] and (e) Pope John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.

On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred from exercising judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted, and that the lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates the International Covenant on Civil and Political Rights considering that the Philippines participated in the deliberations of and voted for the Second Optional Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of carrying out his death sentence by lethal injection on the following grounds: [18]

I.

DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING AND INHUMAN PUNISHMENT.

II.

THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.

III.

LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.

IV.

REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V.

RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT DIRECTOR.

VI.

RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED RULES.

VII.

SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.

VIII.

INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY INVALID AND IMPLEMENTING RULES.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of legislative power, and (d) being discriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.

The main challenge to R.A. 8177 and its implementing rules is anchored on Article III, Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment. "The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the succession of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the United States (of America) and into most constitutions of the various States in substantially the same language as that used in the original statute. The exact language of the Constitution of the United States is used in the Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' xxx In the 1973 Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the present text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with the meaning desired and with jurisprudence on the subject."[20]

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection, the dosage for each drug to be administered, and the procedure in administering said drug/s

into the accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of the execution, time of notification, the court which will fix the date of execution, which uncertainties cause the greatest pain and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administering lethal injection is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an intravenous flow of saline solution. At the warden's signal, a lethal combination of drugs is injected into the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used in heart bypass surgery.[21]

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment.[22] In the oft-cited case ofHarden v. Director of Prisons,[23] this Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Would the lack in particularity then as to the details involved in the execution by lethal injection render said law "cruel, degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are matters which are properly left to the competence and expertise of administrative officials.[24]

Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court" will fix the time and date of execution, and the date of execution and time of notification of the death convict. As petitioner already knows, the "court" which designates the date of execution is the trial court which convicted the accused, that is, after this Court has reviewed the entire records of the case [26] and has affirmed the judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to the court below including a certified copy of the judgment for execution.[27] Neither is there any uncertainty as to the date of execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the death sentence shall be carried out "not earlier than one (1) year nor later then eighteen (18) months from the time the judgment imposing the death penalty became final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18) months from the time the judgment imposing the death penalty became final and executory[28] wherein he can seek executive clemency[29] and attend to all his temporal and spiritual affairs.[30]

Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and untested person insofar as the choice and administration of lethal injection is concerned, renders lethal injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection required the expertise only of phlebotomists and not trained personnel and that the drugs to be administered are unsafe or ineffective.[31] Petitioner simply cites situations in the United States wherein execution by lethal injection allegedly resulted in prolonged and agonizing death for the convict, [32] without any other evidence whatsoever.

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all personnel involved in the execution proceedings should be trained prior to the performance of such task. We must presume that the public officials entrusted with the implementation of the death penalty (by lethal injection) will carefully avoid inflicting cruel punishment.[33]

Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of death penalty and does not fall within the constitutional proscription against cruel, degrading and inhuman punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of course the Constitution does not mean that crime, for this reason, is to go unpunished." [34] The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.[35] Numerous federal and state courts of the United States have been asked to review whether lethal injections constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoner's Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two sentences that lethal injection clearly is a constitutional form of execution. [36] A few jurisdictions, however, have addressed the merits of the Eighth Amendment claims. Without exception, these courts have found that lethal injection does not constitute cruel and unusual punishment. After reviewing the medical evidence that indicates that improper doses or improper administration of the drugs causes severe pain and that prison officials tend to have little training in the administration of the drugs, the courts have found that the few minutes of pain does not rise to a constitutional violation. [37]

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[38] Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency' finding that the widespread use of lethal injections indicates that it comports with contemporary norms."[39] the primary indicator of society's standard of decency with regard to capital punishment is the response of the country's legislatures to the sanction. [40] Hence, for as long as the death penalty remains in our statute books and meets the most stringent requirements provided by the Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the

mode of carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of petitioner herein.

II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS

Petitioner assiduously argues that the reimposition of the death penalty law violates our international obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by the General Assembly of the United Nations on December 16, 1996, signed and ratified by the Philippines on December 19, 1966 and October 23, 1986,[41] respectively.

Article 6 of the International Covenant on Civil and Political Rights provides:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court." (emphasis supplied)

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all-cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State. Party to the present Covenant."

Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, State parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within the Covenant and on the progress made on the enjoyment of those rights one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State

parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6) that abolition is desirable. xxx The Committee is of the opinion that the expression 'most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure." Further, the Safeguards Guaranteeing Protection of Those Facing the Death Penalty[42] adopted by the Economic and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August 22, 1989,[43] respectively. The Optional Protocolprovides that the Human Rights Committee shall receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said document.[44] Evidently, petitioner's assertion of our obligation under the Second Optional Protocol is misplaced.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177 TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in the framing of our Constitution. Each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere.[45] Corollary to the doctrine of separation of powers is the principle of non-delegation of powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest."[46] The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[47]

Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation of legislative authority to administrative bodies.

The reason for delegation of authority to administrative agencies is the increasing complexity of the task of government requiring expertise as well as the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself. Specialization even in legislation has become necessary. On many problems involving day-to-day undertakings, the legislature may not have the needed competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them. [48]

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the policy to be executed, carried out or implemented by the delegate [49] - and (b) fix a standard - the limits of which are sufficiently determinate or determinable - to which the delegate must conform in the performance of his functions.[50]

Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority.[51]

R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. it indicates the circumstances under which the legislative purpose may be carried out.[52] R.A. No. 8177 specifically requires that "[t]he death sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution."[53] Further, "[t]he Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict."[54] The legislature also mandated that "all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task."[55] The Court cannot see that any useful purpose would be served by requiring greater detail.[56] The question raised is not the definition of what constitutes a criminal offense,[57] but the mode of carrying out the penalty already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of discretion by the administrative officials concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks that keep it from overflowing.

Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice and the Director of the Bureau of Corrections under delegated legislative power is proper where standards are formulated for the guidance and the exercise of limited discretion, which though general, are capable of reasonable application.[58]

It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death penalty by electrocution was not subjected to attack on the ground that it failed to provide for details such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of Justice.[59] Further, the Department of Justice is tasked, among others, to take charge of the "administration of the correctional system."[60]Hence, the import of the phraseology of the law is that the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation with the Department of Health. [61]

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be overlooked. To begin with, something basic appears missing in Section 19 of the implementing rules which provides:

"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of events before and after execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel."

Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections could not promulgate a manual that would not bear the imprimatur of the administrative superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of departmental responsibility renders the said paragraph invalid.

As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are matters of public concern "which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen." [62] Section 7 of Article III of the 1987 Constitution provides:

"SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transaction, or decisions, as

well as to government research data used as a basis for policy development, shall be afforded the citizen, subject to such limitation as may be provided by law."

The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy. [63] In the same way that free discussion enables members of society to cope with the exigencies of their time, [64]access to information of general interest aids the people in democratic decision-making [65] by giving them a better perspective of the vital issues confronting the nation.[66]

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section of the implementing rules which provides:

"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death penalty shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code."

Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17 amends the instances when lethal injection may be suspended, without an express amendment of Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659.

Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now reads as follows:

"ART. 83, Suspension of the execution of the death sentence.- The death sentence shall not be inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalty provided in Article 40. x x x".

On this point, the Courts finds petitioner's contention impressed with merit. While Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the implementing rules omits the one (1) year period following delivery as an instance when the death sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced. This addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis, while the omission is an impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law." [67] An administrative agency cannot amend an act of Congress.[68] In case of discrepancy between a provision of statute and a

rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause in Section 17 which suspends the execution of a woman within the three (3) years next following the date of sentence finds no supports in Article 83 of the Revised Penal Code as amended, perforce Section 17 must be declared invalid.

One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional insofar as it delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice and the Director of the Bureau of Corrections) and constitutes a violation of the international norm towards the abolition of the death penalty. One member of the Court, consistent with his view in People v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is itself unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; butGRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declaredINVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision.

NO COSTS.

SO ORDERED.

Republic of the Philippines

Supreme Court

Manila

THIRD DIVISION

ZENON R. PEREZ, G.R. No. 164763

Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - AUSTRIA-MARTINEZ,

CORONA,*

NACHURA, and

REYES, JJ.

PEOPLE OF THE PHILIPPINES Promulgated:

and SANDIGANBAYAN,

Respondents. February 12, 2008

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

D E C I S I O N

REYES, R.T., J.:

PETITIONER Zenon R. Perez seeks a review[1] of his conviction by the Sandiganbayan[2] for malversation of public funds[3] under Article 217 of the Revised Penal Code.

This is not a big case but its implications are wide-ranging and the issues We resolve include the rights to speedy trial and speedy disposition of a criminal case, the balancing test, due process, and cruel and unusual punishment.

The Facts

On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditors Office, Bohol,[4]conducted a cash examination on the account of petitioner, who was then the acting municipal treasurer of Tubigon, Bohol.

Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio message was sent to Loon, the town where he resided, to apprise him of the on-going audit. The following day, the audit team counted the cash contained in the safe of petitioner in his presence. In the course of the audit, the amount of P21,331.79 was found in the safe of petitioner.

The audit team embodied their findings in the Report of Cash Examination, [5] which also contained an inventory of cash items. Based on the said audit, petitioner was supposed to have on hand the total amount of P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.[6]

The report also contained the Cash Production Notice[7] dated January 4, 1989, where petitioner was informed and required to produce the amount of P72,784.57, and the cash count sheet signed and acknowledged by petitioner indicating the correctness of the amount of P21,331.79 found in his safe and counted in his presence. A separate demand letter[8] dated January 4, 1989requiring the production of the missing funds was sent and received by petitioner on January 5, 1989.

When asked by the auditing team as to the location of the missing funds, petitioner verbally explained that part of the money was used to pay for the loan of his late brother, another portion was spent for the food of his family, and the rest for his medicine.[9]

As a result of the audit, Arlene R. Mandin prepared a memorandum[10] dated January 13, 1989 addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case against petitioner.

On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the amounts of P10,000.00 andP15,000.00, respectively. On February 14, 1989, petitioner again remitted to the Provincial Treasurer an additional amount ofP35,000.00, followed by remittances made on February 16, 1989 in the amounts of P2,000.00 and P2,784.00.

An administrative case was filed against petitioner on February 13, 1989. He filed an Answer[11] dated February 22, 1989reiterating his earlier verbal admission before the audit team.

On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of Bohol. Petitioner had then fully restituted his shortage in the amount of P72,784.57. The full restitution of the missing money was confirmed and shown by the following receipts: [12]

Official Receipt No. Date Issued and Received Amount

8266659 January 16, 1989 P10,000.00

8266660 January 16, 1989 P15,000.00

8266662 February 14, 1989 P35,000.00

8266667 February 16, 1989 P 2,000.00

8266668 February 16, 1989 P 2,784.00

8266675 April 17, 1989 P 8,000.00

TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined and penalized by Article 217 of the Revised Penal Code in an Information that read:

That on or about the period covering from December 28, 1988 to January 5, 1989 , and for sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a public officer being then Acting Municipal Treasury of the said Municipality, by reason of the duties of his official position was accountable for the public funds collected and received by him, with grave abuse of confidence did then and there willfully, unlawfully and feloniously misappropriate, misapply, embezzle and take away from the said funds the total amount of SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which said fund was appropriated and converted by the said accused to his own personal use and benefit to the damage and prejudice of the government in the aforementioned amount.

CONTRARY TO LAW.[13] (Underscoring supplied)

On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of not guilty.[14]

Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled, due to the presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol.

On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness. Arlene R. Mandin testified as narrated above.

The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents of his first Answer[15] to the administrative case filed against him by the audit team. He claimed it was prepared without the assistance of counsel and that at the time of its preparation and submission, he was not in peak mental and physical condition, having been stricken with diabetes mellitus. [16]

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2, 1989.[17] In the latter, he vehemently denied that he incurred a cash shortage P72,784.57.

According to petitioner, the alleged shortage was in the possession and custody of his accountable personnel at the time of the audit examination. Several amounts totalling P64,784.00 were remitted to him on separate dates by his accountable officer, startingJanuary 16, 1989 to February 16, 1989. The same were turned over by him to the Office of the Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16, 1989.[18] He remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring the cash shortage.

Petitioner further testified that on July 30, 1989, he submitted his Position Paper[19] before the Office of the Ombudsman,Cebu City and maintained that the alleged cash shortage was only due to oversight. Petitioner argued that the government did not suffer any damage or prejudice since the alleged cash shortage was actually deposited with the Office of the Provincial Treasurer as evidenced by official receipts.[20]

Petitioner completed his testimony on September 20, 1990. He rested his case on October 20, 1990.[21]

Sandiganbayan Disposition

On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading:

WHEREFORE, judgment is hereby rendered finding the accused ZENON R. PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as defined in and penalized by Article 217 of the Revised Penal Code and, there being one mitigating circumstance without any aggravating circumstance to offset the same, is hereby sentenced to suffer an indeterminate penalty of from TEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS ofreclusion temporal as the maximum and to suffer perpetual special disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount of the funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57).

SO ORDERED.[22] (Emphasis in the original)

On January 13, 2004, petitioner filed a motion for reconsideration[23] which the prosecution opposed on January 28, 2004.[24] Petitioner replied[25] to the opposition. On August 6, 2004, petitioners motion was denied with finality.

On September 23, 2004, petitioner resorted to the instant appeal[26] raising the following issues, to wit:

I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS .

II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE IMPOSED IS CRUEL ANDTHEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.[27] (Underscoring supplied)

Our Ruling

Before addressing petitioners twin assignment of errors, We first tackle the propriety of petitioners conviction for malversation of public funds.

I. Petitioner was correctly convicted of malversation.

Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as malversation are:(1) appropriating public funds or property, (2) taking or misappropriating the same, (3) consenting, or through abandonment ornegligence, permitting any other person to take such public funds or property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property.[28]

There are four elements that must concur in order that one may be found guilty of the crime. They are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the duties of his office;

(c) That those funds or property involved were public funds or property for which he is accountable; and

(d) That he has appropriated, took or misappropriated or consented or, through abandonment or negligence, permitted another person to take them.[29]

Evidently, the first three elements are present in the case at bar. At the time of the commission of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. By reason of his public office, he was accountable for the public funds under his custody or control.

The question then is whether or not petitioner has appropriated, took or misappropriated, or consented or through abandonment or negligence, permitted another person to take such funds.

We rule in the affirmative.

In malversation, all that is necessary to prove is that the defendant received in his possession public funds; that he could not account for them and did not have them in his possession; and that he could not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily.[30]

Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of malversation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie case of conversion.[31]

Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to adequately explain the location of the funds or property under his custody or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused may be convicted under the said provision.

However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at end and the prima facie case is destroyed.[32]

In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption that he malversed the missing funds in his custody or control. What is extant in the records is that the prosecution, through witness Arlene R. Mandin, was able to prove that petitioner malversed the funds under his custody and control. As testified by Mandin:

Atty. Caballero:

Q: Was Mr. Zenon Perez actually and physically present during the time of your cash examination?

Witness:

A. Yes, Sir.

Q: From December 28, to January 5, 1989?

A: He was present on December 28, 1988 and January 4 and 5, 1989, Sir.

Q: Did he not make any verbal explanation as the reason why he was short of about P72,000.00, after you conducted the cash count on January 5, 1989?

A: Yes, Sir, he did.

Q: What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother and the other portion was spent for food of his family; and the rest for his medicine.[33] (Emphasis supplied)

Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer of Bohol in the administrative case filed against him.

In that Answer, petitioner narrated how he disposed of the missing funds under his custody and control, to wit: (1) aboutP30,000.00 was used to pay the commercial loan of his late brother; (2) he spent P10,000.00 for the treatment of his toxic goiter; and (3) about P32,000.00 was spent for food and clothing of his family, and the education of his children. He there stated:

1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57 during the examination of the respondents cash accounts by the Commission on Audit on December 28-29, 1988 and January 4-5, 1989 are as follows, to wit:

(a) That respondent paid the amount of about P30,000.00 to the Philippine National Bank, Tagbilaran Branch as interests of the commercial loan of his late brother Carino R. Perez using respondents house and lot as collateral thereof. If the interests would not be paid, the loan would be foreclosed to respondents great prejudice and disadvantage considering that he and his family are residing in said house used as collateral;

(b) That respondent spent the amount of P10,000.00 in connection with the treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent by him for his familys foods, clothings (sic), and education of his children because his monthly salary is not enough for the needs of his family.[34]

By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth element of the crime of malversation was duly established. His conviction thus stands in terra firma.

True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22, 1989. His second Answer averred:

3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still in the possession and custody of his accountable personnel at the time of the examination held by the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were already remitted to him by his accountable personnel after January 5, 1989, and only the remaining amount of P8,000.00 remains to be remitted to him by his accountable personnel.[35]

The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak.

It is contended that petitioners first Answer of February 22, 1989 should not have been given probative weight because it was executed without the assistance of counsel.[36]

There is no law, jurisprudence or rule which mandates that an employee should be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not indispensable in administrative proceedings.

Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat may tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa kasong administratibo.

The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or accused during custodial investigation. It is not an absolute right

and may be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry.[37]

Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa suspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na karapatan at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo na sa isang administratibong pagsisiyasat.

While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of respondents capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. [38]

Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. [39]

Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado, para mapanatili ang dignidad ng paglilingkod sa pamahalaan.

There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.[40]

More than that, petitioners first Answer may be taken against him, as he executed it in the course of the administrative proceedings below. This is pursuant to Rule 130, Section 26 of the Rules of Court which provides that the act, declaration or omission of a party as to a relevant fact may be given against him. In People v. Lising,[41] the Court held:

Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may be given against him. This is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A mans act, conduct and declarations wherever made, provided they be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not.

There is also no merit in the contention that petitioners sickness affected the preparation of his first Answer. He presented no convincing evidence that his disease at the time he formulated that answer diminished his capacity to formulate a true, clear and coherent response to any query. In fact, its contents merely reiterated his verbal explanation to the auditing team on January 5, 1989on how he disposed of the missing funds.

II. There is no violation of the rights to a speedy disposition of the case and to due process of law.

We now discuss the right to a speedy trial and disposition, the balancing test, due process, and cruel and unusual punishment.

Petitioner asserts that his right to due process of law and to speedy disposition of his case was violated because the decision of the Sandiganbayan was handed down after the lapse of more than twelve years. The years that he had to wait for the outcome of his case were allegedly spent in limbo, pain and agony.[42]

We are not persuaded.

Due process of law as applied to judicial proceedings has been interpreted to mean a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. [43] Petitioner cannot complain that his right to due process has been violated. He was given all the chances in the world to present his case, and the Sandiganbayan rendered its decision only after considering all the pieces of evidence presented before it.

Petitioners claim of violation of his right to a speedy disposition of his case must also fail.

The 1987 Constitution[44] guarantees the right of an accused to speedy trial. Both the 1973 Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill of Rights, are also explicit in granting to the accused the right to speedy disposition of his case.[45]

In Barker v. Wingo,[46] the United States Supreme Court was confronted for the first time with two rigid approaches on speedy trial as ways of eliminating some of the uncertainty which courts experience protecting the right.[47]

The first approach is the fixed-time period which holds the view that the Constitution requires a criminal defendant to be offered a trial within a specified time period.[48] The second approach is the demand-waiver rule which provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right.[49]

The fixed-time period was rejected because there is no constitutional basis for holding that the speedy trial can be quantified into a specific number of days or months.[50] The demand-waiver rule was likewise rejected because aside from the fact that it is inconsistent with this Courts pronouncements on waiver of constitutional rights,[51] it is insensitive to a right which we have deemed fundamental.[52]

The Court went on to adopt a middle ground: the balancing test, in which the conduct of both the prosecution and defendant are weighed.[53] Mr. Justice Powell, ponente, explained the concept, thus:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that

will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendants responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendants assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.[54] (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test.

In 1991, in Gonzales v. Sandiganbayan,[55] this Court ruled:

It must be here emphasized that the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive

delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason for the delay, the defendants assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, are considered. (Underscoring supplied)

Subsequently, in Dela Pea v. Sandiganbayan,[56] this Court again enumerated the factors that should be considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3) assertion or failure to assert such right by the accused; and (4) prejudice caused by the delay. [57]

Once more, in Mendoza-Ong v. Sandiganbayan,[58] this Court reiterated that the right to speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended by vexatious, capricious and oppressive delays.[59] In the determination of whether said right has been violated, particular regard must be taken of the facts and circumstances peculiar to each case. [60] The conduct of both the prosecution and defendant, the length of the delay, the reasons for such delay, the assertion or failure to assert such right by accused, and the prejudice caused by the delay are the factors to consider and balance.[61]

Moreover, the determination of whether the delays are of said nature is relative and cannot be based on a mere mathematical reckoning of time.[62]

Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a speedy disposition of his case.

More important than the absence of serious prejudice, petitioner himself did not want a speedy disposition of his case.[63]Petitioner was duly represented by counsel de parte in all stages of the proceedings before the Sandiganbayan. From the moment his case was deemed submitted for decision up to the time he was found guilty by the Sandiganbayan, however, petitioner has not filed a single motion or manifestation which could be construed even remotely as an indication that he wanted his case to be dispatched without delay.

Petitioner has clearly slept on his right. The matter could have taken a different dimension if during all those twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his case or at least made some overt acts, like filing a motion for early resolution, to show that he was not waiving that right.[64]

Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those who neglect their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang karapatan. Vigilantis sed non dormientibus jura in re subveniunt.The law aids the vigilant and not those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay at hindi sa mga humihimbing sa kanilang karapatan.

Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and anxiety for over twelve years.However, any prejudice that may have been caused to him in all those years was only minimal. The supposed gravity of agony experienced by petitioner is more imagined than real.

This case is analogous to Guerrero v. Court of Appeals.[65] There, the Court ruled that there was no violation of petitioners right to speedy trial and disposition of his case inasmuch as he failed seasonably to assert his rights:

In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right a situation amounting to laches had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the accused showed signs of asserting his right which was granted him in 1987 when the new Constitution took effect, or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a partys individual rights should not work against and preclude the peoples equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the

respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises.

III. The law relied upon in convicting petitioner is not cruel and unusual. It does not violate Section 19, Article III of the Bill of Rights.

What constitutes cruel and unusual punishment has not been exactly defined. [66] The Eighth Amendment of the United States Constitution,[67] the source of Section 19, Article III of the Bill of Rights[68] of our own Constitution, has yet to be put to the test to finally determine what constitutes cruel and inhuman punishment.[69]

Cases that have been decided described, rather than defined, what is meant by cruel and unusual punishment. This is explained by the pronouncement of the United States Supreme Court that [t]he clause of the Constitution, in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.[70]

In Wilkerson v. Utah,[71] Mr. Justice Clifford of the United States Supreme Court opined that [d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution.[72]

In In Re: Kemmler,[73] Mr. Chief Justice Fuller of that same Court stated that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies x x x something more inhuman and barbarous, something more than the mere extinguishment of life. [74]

Again, in Weems v. U.S.,[75] Mr. Justice McKenna held for the Court that cadena temporal and its accessory penalties has no fellow in American legislation. Let us remember that it has come to us from a government of a different form and genus from ours. It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind. And they would have

those bad attributes even if they were found in a Federal enactment, and not taken from an alien source.

In Echegaray v. Executive Secretary,[76] this Court in a per curiam Decision held that Republic Act No. 8177,[77] even if it does not provide in particular the details involved in the execution by lethal injection, is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the death penalty and does not fall within the constitutional proscription against cruel, degrading or inhuman punishment. [78]

The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice and must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. [79]

In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of malversation of public funds that ha[ve] been replenished, remitted and/or returned to the government is cruel and therefore unconstitutional, as government has not suffered any damage. [80]

The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take and misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property.[81]

Payment or reimbursement is not a defense for exoneration in malversation; it may only be considered as a mitigating circumstance. This is because damage is not an element of malversation.

Second. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in harmony with, rather than in violation of, the Constitution.[82] The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.[83] It is presumed that the legislature has acted within its constitutional powers. So, it is the generally accepted rule that every statute, or regularly accepted act, is, or will be, or should be, presumed to be valid and constitutional.[84]

He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the Constitution.Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.

IV. On the penalty

The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. In imposing the penalty, it found that petitioner was entitled to the mitigating circumstance of payment which is akin to voluntary surrender.

Article 217 penalizes malversation in the following tenor:

Article 217. Malversation of public funds or property. Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take and misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property.

x x x x

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua .

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (Underscoring supplied)

The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its maximum period to reclusion perpetua, which has a range of seventeen (17) years, four (4) months and one (1) day to forty (40) years.

However, the commission of the crime was attended by the mitigating circumstance akin to voluntary surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full amount even before the prosecution could present its evidence. That is borne by the records.

It bears stressing that the full restitution of the amount malversed will not in any way exonerate an accused, as payment is not one of the elements of extinction of criminal liability. Under the law, the refund of the sum misappropriated, even before the commencement of the criminal prosecution, does not exempt the guilty person from liability for the crime.[85] At most, then, payment of the amount malversed will only serve as a mitigating circumstance[86] akin to voluntary surrender, as provided for in paragraph 7 of Article 13[87] in relation to paragraph 10[88] of the same Article of the Revised Penal Code.

But the Court also holds that aside from voluntary surrender, petitioner is entitled to the mitigating circumstance of no intention to commit so grave a wrong,[89] again in relation to paragraph 10 of Article 13.[90]

The records bear out that petitioner misappropriated the missing funds under his custody and control because he was impelled by the genuine love for his brother and his family. Per his admission, petitioner used part of the funds to pay off a debt owed by his brother. Another portion of the misappropriated funds went to his medications for his debilitating diabetes.

Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the funds in less than one month and a half and said small balance in three (3) months from receipt of demand of COA on January 5, 1999. Evidently, there was no intention to commit so grave a wrong.

Of course, the end does not justify the means. To condone what petitioner has done because of the nobility of his purpose or financial emergencies will become a potent excuse for malefactors and open the floodgates for more corruption in the government, even from small fry like him.

The bottom line is a guilty person deserves the penalty given the attendant circumstances and commensurate with the gravity of the offense committed. Thus, a reduction in the imposable penalty by one degree is in order. Article 64 of the Revised Penal Code is explicit:

Art. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties prescribed by law contains three periods, whether it be a single divisible penalty or composed of three difference penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the courts shall observe for the application of the penalty, the following rules, according to whether there are no mitigating or aggravating circumstances:

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. (Underscoring supplied)

Considering that there are two mitigating circumstances, the prescribed penalty is reduced to prision mayor in its maximum period to reclusion temporal in its medium period, to be imposed in any of its periods. The new penalty has a range of ten (10) years and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law,[91] the maximum termcould be ten (10) years and one (1) day of prision mayor maximum, while the minimum term is again one degree lower[92] and could be four (4) years, two (2) months and one (1) day of prision correccional maximum.

In the 1910 case of U.S. v. Reyes,[93] the trial judge entered a judgment of conviction against the accused and meted to him the penalty of three years imprisonment, to pay a fine of P1,500.00, and in case of

insolvency to suffer subsidiary imprisonment at the rate of one day for every P2.50 that he failed to pay, which subsidiary imprisonment, however, should not exceed one third of the principal penalty and to be perpetually disqualified for public office and to pay the costs. This was well within the imposable penalty then under Section 1 of Act No. 1740,[94] which is imprisonment for not less than two months nor more than ten years and, in the discretion of the court, by a fine of not more than the amount of such funds and the value of such property.

On appeal to the Supreme Court, the accuseds conviction was affirmed but his sentence was modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to the judgment appealed from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully disposed of a portion of the municipal funds, putting the same to his own use, and to that of other persons in violation of Act. No. 1740, and consequently he has incurred the penalty therein established as principal of the crime of misappropriation; and even though in imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its discretional powers as authorized by law, believes that the circumstances present in the commission of crimes should be taken into consideration, and in the present case the amount misappropriated was refunded at the time the funds were counted.[95] (Underscoring supplied)

We opt to exercise an analogous discretion.

WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is AFFIRMED with the MODIFICATIONthat petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as minimum term, to ten (10) years and one (1) day of prision mayor, as maximum term, with perpetual special disqualification. He is likewise ORDERED to pay a fine of P72,784.57, the amount equal to the funds malversed.

Costs against petitioner.

SO ORDERED

EN BANC

G.R. No. 180016               April 29, 2014

LITO CORPUZ, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in 1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies' bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (P98,000.00), Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (P98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of P98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS

EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned and that the date when the crime occurred was different from the one testified to by private complainant. This argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does not render the Information ipso facto defective. Moreover, the said date is also near the due date within which accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the private complainant, to the prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The assessment by the trial court is even conclusive

and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the members of the division reached no unanimity on this question and since the issues are of first impression, they decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the following:

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on crimes against property committed today, based on the amount of damage measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. This, however, does not render the whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief

Executive the reasons why the court considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount of P100,000,000.00 plundered, the legislature lowered it to P50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply, from P1,000,000.00 to P500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is P6,000.00, the above-provision states that the penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its medium period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the said minimum period and may even apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period

under the existing law. Thus, it would seem that the present penalty imposed under the law is not at all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be commensurate to the act committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:

1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24

3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).

4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayor medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1 day to 6 months).

6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not changed, as follows:

1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable by prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25

2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions asP10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however, this is no longer achieved, because a person who steals P142,000.00 would receive the same penalty as someone who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the amount of the thing subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters to Congress for them to exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to Congress. Thus:

x x x x

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00) Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two Thousand (P22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the latter’s recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of parole under South Dakota’s recidivist statute because of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the crime and which, by adopting the proposal, may create serious implications. For example, in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the offender. Thus, following the proposal, if the amount malversed is P200.00 (under the existing law), the amount now becomes P20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement ofP20,000.00 compared to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15 years)32under the Anti-Graft Law will now become higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his public position to embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused exceeds P1,000.00, but under the proposal, the value of the damage will now become P100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not exceed P200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more than P200.00, if the amount involved does not exceed P200.00 or cannot be estimated. Under the proposal, P200.00 will now become P20,000.00, which simply means that the fine of P200.00 under the existing law will now become P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply the law, especially when they are clear and not subject to any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental penalty provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to the amount of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42Article III of the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process, considering that the State and the concerned parties were not given the opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to the present value of money based only on the current inflation rate. There are other factors and variables that need to be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:

x x x x

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred (P100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (P1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additionalP10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the same Code requires the division of the time included in the penalty into three equal portions of time included in the penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00, which exceeds P22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years.

Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law, then, adding one year for each additional P10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.

DIOSDADO M. PE