Consti Arrest Search and Seizure Cases 1 to 14

8/13/2019 Consti Arrest Search and Seizure Cases 1 to 14

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THIRD DIVISION

[G.R. No. 143944. July 11, 2002.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER BONGCARAWAN yMACARAMBON,accused-appellant.

D E C I S I O N

PUNO,J p:

This is an appeal from the Decision 1dated December 27, 1999 of the Regional Trial Court of Iligan City,Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan yMacarambon guilty beyondreasonable doubt of violation of Section 16, Article III of Republic Act No. 6425 2 as amended, and

sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred ThousandPesos (P500,000.00) without subsidiary imprisonment in case of insolvency. cDAITS

Accused Basher Bongcarawan yMacarambon was charged in an Information which reads, thus: cEaSHC

"That on or about March 13, 1999, in the City of Iligan, Philippines, and within thejurisdiction of this Honorable Court, the said ac cused, without authority of law, didthen and there wilfully, unlawfully and feloniously have in his possession, custodyand control eight (8) packs of Methamphetamine Hydrochloride, a regulated drugcommonly known as Shabu, weighing approximately 400 grams, without thecorresponding license or prescription.

Contrary to and in violation of Section 16, Article III of RA 6425, otherwise knownas the Dangerous Drugs Act of 1972, as amended by RA 7659."3

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock atthe port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger LorenaCanoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit.

Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for thesuspect whom they later found at the economy section.4The suspect was identified as the accused, BasherBongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. Withhis consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) securityagents back to the economy section to get his baggage. The accused took a Samsonite suitcase and broughtthis back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brownbag and small plastic packs containing white crystalline substance. Suspecting the substance to be " shabu,"the security personnel immediately reported the matter to the ship captain and took pictures of the accusedbeside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.5At about6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo DeGuzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items theSamsonite suitcase, a brown bag6and eight (8) small plastic packs of white crystalline substance.7Whenasked about the contraband articles, the accused explained that he was just requested by a certain Alican"Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City. 8 The accused and the seizeditems were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force(PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,9while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro Cityfor laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to bemethamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams.10

The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was inQuiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He wasrequested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, andto give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night,

carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes hebought from Manila, and the Samsonite suitcase of Macapudi. 11He stayed at cabin no. 106. At about 4:00a.m. of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage andpositioned himself at the economy section to be able to disembark ahead of the other passengers. There, he

met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and awoman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspectedof stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked.Subsequently, he was asked to get his baggage, so he went back to the economy section and took the bigluggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushesfor fear that they would be confiscated by the security personnel. When requested, he voluntarily openedthe big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and hada secret combination lock. The security personnel forcibly opened the suitcase and found packs of whitecrystalline substance inside which they suspected to be " shabu." They took pictures of him with themerchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard,then to the PAOCTF. 12

On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:

"WHEREFORE, the court finds the accused Basher Bongcarawan y MacarambonGUILTY beyond reasonable doubt as principal of the offense of violation of Section16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes uponhim the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND(P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.

Having been under preventive imprisonment since March 13, 1999 until thepresent, the period of such preventive detention shall be credited in full in favor ofthe accused in the service of his sentence.

The 399.3266 grams of methamphetamine hydrochloride or shabu is herebyordered delivered to the National Bureau of Investigation for proper disposition.

SO ORDERED."13

Hence, this appeal where the accused raises the following assignment of errors:

"I.

THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED ISADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT.

II.

THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THECONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINSTHIM."14

On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing themethamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, andhence, in violation of his constitutional right against unreasonable search and seizure. Any evidence

acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him.He also contends that People v. Marti15is not applicable in this case because a vessel security personnel isdeemed to perform the duties of a policeman.

The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the Constitution. 16Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding. 17Whenever this right is challenged, an individual may choose between invoking the constitutional protectionor waiving his right by giving consent to the search and seizure. It should be stressed, however, thatprotection is against transgression committed by the government or its agent. As held by this Court in thecase of People v. Marti, 18 "[i]n the absence of governmental interference, liberties guaranteed by theConstitution cannot be invoked against the State." 19 The constitutional proscription against unlawfulsearches and seizures applies as a restraint directed only against the government and its agencies taskedwith the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint

against arbitrary and unreasonable exercise of power is imposed.20

In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel.It was only after they found " shabu" inside the suitcase that they called the Philippine Coast Guard forassistance. The search and seizure of the suitcase and the contraband items was therefore carried out
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without government intervention, and hence, the constitutional protection against unreasonable search andseizure does not apply.

There is no merit in the contention of the accused-appellant that the search and seizure performed by thevessel security personnel should be considered as one condu cted by the police authorities for like the latter,the former are armed and tasked to maintain peace and order. The vessel security officer in the case at baris a private employee and does not discharge any governmental function. In contrast, police officers areagents of the state tasked with the sovereign function of enforcement of the law. Historically and until now,it is against them and other agents of the state that the protection against unreasonable searches andseizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is not the owner of theSamsonite suitcase and he had no knowledge that the same contained " shabu." He submits that without

knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.21

We are not persuaded.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyondreasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or aregulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely andconsciously possessed the said drug. 22 The first two elements were sufficiently proven in this case, andwere in fact undisputed. We are left with the third.

As early as 1910 in the case of United States v. Tan Misa,23this Court has ruled that to warrant conviction,the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendiexisted together with the possession or control of such articles. 24 It has been ruled, however, thatpossession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi

sufficient to convict an accused in the absence of a satisfactory explanation of such possession.25Hence,the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.26

In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving andincredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is therule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trialcourt's evaluation of the credibility of witnesses will not be disturbed on appeal. 27 Moreover, evidencemust be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admitsthat when he was asked to get his baggage, he knew it would be inspected. 28Why he got the Samsonitesuitcase allegedly not owned by him and which had a combination lock known only to the owner remainsunclear. He also claims that he did not present his small "maleta" for inspection for fear that its contentsconsisting of expensive sunglasses and brushes would be confiscated, 29 but he brought the Samsonitesuitcase which is not his and also contained expensive sunglasses, and even watches. 30

The things in possession of a person are presumed by law to be owned by him. 31 To overcome thispresumption, it is necessary to present clear and convincing evidence to the contrary. In this case, theaccused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented noevidence to support his claim. As aptly observed by the trial judge:

"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist orsimply a figment of the imagination? He says that Alex Macap[u]di is a friend and afellow businessman who has a stall selling sunglasses in Marawi City. But nowitnesses were presented to prove that there is such a living, breathing, flesh andblood person named Alex Macap[u]di who entrusted the Samsonite to the accused.Surely, if he does exist, he has friends, fellow businessmen and acquaintances whocould testify and support the claim of the accused."32

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of thedefense of the accused-appellant. Stories can easily be fabricated. It will take more than bare-bone

allegations to convince this Court that a courier of dangerous drugs is not its owner and has noknowledge or intent to possess the same.

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542,convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No.6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of FiveHundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, isAFFIRMED.

Costs against the accused-appellant. IaHCAD

SO ORDERED.

Panganiban, Sandoval-Gutierrezand Carpio, JJ.,concur.
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SECOND DIVISION

[G.R. Nos. 133254-55. April 19, 2001.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO SALANGUIT yKO,accused-appellant.

D E C I S I O N

MENDOZA,J p:

This is an appeal from the decision,1dated January 27, 1998, of the Regional Trial Court, Branch 96, QuezonCity, finding accused-appellant Roberto Salanguit y Ko guilty of violation of 16 of Republic Act No. 6425, asamended, and sentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto

mayor, as minimum, to four (4) years and two (2) months ofprision correccional, as maximum, and of 8 ofthe same law and sentencing him for such violation to suffer the penalty of reclusion perpetua and to pay afine of P700,000.00.

Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. InCriminal Case No. Q-95-64357, the information alleged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, thesaid accused, did then and there willfully, unlawfully and knowingly possess and/oruse 11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug,without the necessary license and/or prescription therefor, in violation of said law.

CONTRARY TO LAW. 2

In Criminal Case No. Q-95-64358, the information charged:

That on or about the 26th day of December 1995, in Quezon City, Philippines, thesaid accused not being authorized by law to possess or use any prohibited drug,did, then and there willfully, unlawfully and knowingly have in his possession andunder his custody and control 1,254 grams of Marijuana, a prohibited drug. aSECAD

CONTRARY TO LAW. 3

When arraigned on May 21, 1996, accused-appellant pleaded not guilty,4whereupon he was tried.

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief ofthe Physical Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector RodolfoAguilar of the Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10,Kamuning, Quezon City, a field operative. The prosecution evidence established the following:

On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional Trial Court, Branch 90,Dasmarias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St.,

Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accused-appellant's room, and Badua saw that the shabu was taken by accused-appellant from a cabinet inside hisroom. The application was granted, and a search warrant was later issued by Presiding Judge Dolores L.Espaol.

At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian informer,went to the residence of accused-appellant to serve the warrant. 6

The police operatives knocked on accused-appellant's door, but nobody opened it. They heard people insidethe house, apparently panicking. The police operatives then forced the door open and entered the house.7

After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searchingthe house. 8 They found 12 small heat-sealed transparent plastic bags containing a white crystallinesubstance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaveswhich appeared to be marijuana wrapped in newsprint 9 having a total weight of approximately 1,255grams. 10A receipt of the items seized was prepared, but the accused-app ellant refused to sign it.11

After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning,Quezon City, along with the items they had seized.12

PO3 Duazo requested a laboratory examination of the confiscated evidence. 13 The white crystallinesubstance with a total weight of 2.77 grams and those contained in a small box with a total weight of 8.37grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two bricks ofdried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana. 14

For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by hismother-in-law, Soledad Arcano.

Accused-appellant testified that on the night of December 26, 1995, as they were about to leave theirhouse, they heard a commotion at the gate and on the roof of their house. Suddenly, about 20 men incivilian attire, brandishing long firearms, climbed over the gate and descended through an opening in theroof.15

When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder waswaved in front of him. As accused-appellant fumbled for his glasses, however, the paper was withdrawn andhe had no chance to read it. 16

Accused-appellant claimed that he was ordered to stay in one place of the house while the policemenconducted a search, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliberfirearm, jewelry, and canned goods.17

The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-appellant, took him with them to the NARCOM on EDSA, Quezon City, where accused-appellant wasdetained. 18

Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that thepolicemen ransacked their house, ate their food, and took away canned goods and other valuables.19

After hearing, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered:

1.In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425,as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyondreasonable doubt of the crime charged and he is hereby accordingly sentenced tosuffer an indeterminate sentence with a minimum of six (6) months of arrestomayor and a maximum of four (4) years and two (2) months ofprision correccional;and,

2.In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 642 5, asamended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonabledoubt of the crime charged and he is hereby accordingly sentenced to sufferreclusion perpetua and to pay a fine of P700,000.00.

The accused shall further pay the costs of suit.

The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams ofmarijuana bricks are hereby confiscated and condemned for disposition accordingto law. The evidence custodian of this Court is hereby directed to turn suchsubstances over to the National Bureau of Investigation pursuant to law.

SO ORDERED.20

Hence this appeal. Accused-appellant contends that

THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALID

THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGALPOSSESSION OF METHAMPHETAMINE HYDRO-CHLORIDE (SHABU)

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT FORVIOLATION 8, R.A. NO. 6425

THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OFMARIJUANA
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THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVEFORCE IN ENFORCING THE SEARCH WARRANT.

Accused-appellant is contesting his conviction on three grounds. First, the admissibility of the shabuallegedly recovered from his residence as evidence against him on the ground that the warrant used inobtaining it was invalid. Second, the admissibility in evidence of the marijuana allegedly seized fromaccused-appellant pursuant to the "plain view" doctrine. Third, the employment of unnecessary force by thepolice in the execution of the warrant.

First. Rule 126, 4 of the Revised Rules on Criminal Procedure21provides that a search warrant shall notissue except upon probable cause in connection with one specific offense to be determined personally bythe judge after examination under oath or affirmation of the complainant and the witnesses he mayproduce, and particularly describing the place to be searched and the things to be seized which may be

anywhere in the Philippines.

In issuing a search warrant, judges must comply strictly with the requirements of the Constitution and theRules of Criminal Procedure. No presumption of regularity can be invoked in aid of the process when anofficer undertakes to justify its issuance.22Nothing can justify the issuance of the search warrant unless allthe legal requisites are fulfilled.

In this case, the search warrant issued against accused-appellant reads:

SEARCH WARRANT NO. 160

For: Violation of RA 6425

SEARCH WARRANT

TO ANY PEACE OFFICER:

GREETINGS:

It appearing to the satisfaction of the undersigned after examining under oath SR.INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNPthat there is probable cause to believe that ROBERT SALANGUIT has in his

possession and control in his premises Binhagan St., San Jose, Quezon City asshown in Annex "A", the properties to wit: TcIAHS

UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA

which should be seized and brought to the undersigned.

You are hereby commanded to make an immediate search anytime of theday/night of the premises above-described and forthwith seize and take p ossessionof the above-stated properties and bring said properties to the undersigned to bedealt with as the law directs.

GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite,Philippines.

(SGD.) DOLORES L. ESPAOL

J u d g e

Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable causeto search for drug paraphernalia; (2) that the search warrant was issued for more than one specific offense;and (3) that the place to be searched was not described with sufficient particularity.

Existence of Probable Cause

The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence

was presented showing probable cause of the existence of methamphetamine hydrochloride or shabu.Accused-appellant contends, however, that the search warrant issued is void because no evidence waspresented showing the existence of drug paraphernalia and the same should not have been ordered to beseized by the trial court.23

The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as aposeur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about drugparaphernalia. He stated:

QBeing a member of the Intelligence and Operation Section, NMDU, NARCOM, doyou remember if you were assigned into a monitoring or surveillancework?

AYes, sir.

QOf what particular assignment or area were you assigned for monitoring orsurveillance?

AIts within the Quezon City area particularly a house without a number located at

Binhagan St., San Jose, Quezon City, sir.

QDo you know the person who occup ies the specific place?

AYes, sir, he is ROBERT SALANGUIT @ Robert.

QAre you familiar with that place?

AYes, sir, as part of my surveillance, I was able to penetrate inside the area andestablished contract with ROBERT SALANGUIT alias Robert through myfriend who introduced me to the former.

QIn what particular occasion did you meet ROBERT SALANGUIT alias Robert?

AWhen I was introduced by my friend as a good buyer and drug pusher of shabu,sir.

QWere you able to buy at that time?

AYes, sir.

QHow much if you can still remember the amount involved?

AI was able to buy two point twelve (2.12) grams of shabu in the amount of TwoThousand Seven Hundred Fifty (P2,750.00) pesos, sir.

QHaving established contact with ROBERT SALANGUIT @ Robert, do you knowwhere the stuff (shabu) were being kept?

AYes, sir, inside a cabinet inside his room.

QHow were you able to know the place where he kept the stuff?

AWhen I first bought the 2.12 grams of shabu from him, it was done inside his

room and I saw that the shabu was taken by him inside his cabinet.

QDo you know who is in control o f the premises?

AYes, sir, it was ROBERT SALANGUIT @ Robert.

QHow sure are you, that the shabu that you bought from ROBERT SALANGUIT @Robert is genuine shabu?

AAfter I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to ouroffice and reported the progress of my mission to our Chief andpresented to him the 2.12 grams of shabu I bought from the subject.Then afterwards, our Chief formally requested the Chief PNP CentralCrime Laboratory Services, NPDC, for Technical Analysis which yieldedpositive result for shabu, a regulated drug as shown in the attachedcertification of PNP CLS result No. D-414-95 dated 19 Dec. 95.

QDo you have anything more to add or retract from your statement?
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AYes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wishto buy bigger quantity of shabu, he is willing to transact to me on cashbasis at his price of One Thousand Seven Hundred Fifty (P1,750.00)pesos per gram.

QAre you willing to sign your statement freely and voluntarily?

AYes, sir.24

However, the fact that there was no probable cause to support the application for the seizure of drugparaphernalia does not warrant the conclusion that the search warrant is void. This fact would be materialonly if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of thesearch warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizureof drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to whichevidence was presented showing probable cause as to its existence. Thus, in Aday v.SuperiorCourt,25thewarrant properly described two obscene books but improperly described other articles. It was held:

Although the warrant was defective in the respects noted, it does not follow that itwas invalid as a whole. Such a conclusion would mean that the seizure of certainarticles, even though proper if viewed separately, must be condemned merelybecause the warrant was defective with respect to other articles. The invalidportions of the warrant are severable from the authorization relating to the namedbooks, which formed the principal basis of the charge of obscenity. The search forand seizure of these books, if otherwise valid, were not rendered illegal by thedefects concerning other articles . . . In so holding we do not mean to suggest thatinvalid portions of a warrant will be treated as severable under all circumstances.We recognize the danger that warrants might be obtained which are essentiallygeneral in character but as to minor items meet the requirement of particularity,

and that wholesale seizures might be made under them, in the expectation thatthe seizure would in any event be upheld as to the property specified. Such anabuse of the warrant procedure, of course, could not be tolerated.

It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly

describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred inauthorizing a search for other items not supported by the evidence.26Accordingly, we hold that the firstpart of the search warrant, authorizing the search of accused-appellant's house for an undeterminedquantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia,is not.

Specificity of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one specific offense becausepossession or use of methamphetamine hydrochloride and possession of drug paraphernalia are punishedunder two different provisions of R.A. No. 6425.27It will suffice to quote what this Court said in a similarcase to dispose of this contention:

While it is true that the caption of the search warrant states that it is in connectionwith "Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of1972," it is clearly recited in the text thereof that "There is probable cause tobelieve that Adolfo Olaes alias 'Debie' and alias 'Baby' of No. 628 Comia St.,Filtration, Sta. Rita, Olongapo City, has in their session and control and custody ofmarijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited andexempt narcotics preparations which is the subject of the offense stated above."Although the specific section of the Dangerous Drugs Act is not pinpointed, there isno question at all of the specific offense alleged to have been committed as a basisfor the finding of probable cause. The search warrant also satisfies the requirementin the Bill of Rights of the particularity of the description to be made of the "placeto be searched and the persons or things to be seized."28

Indeed, in People v.Dichoso29the search warrant was also for "Violation of R.A. 6425," without specifyingwhat provisions of the law were violated, and it authorized the search and seizure of "dried marijuanaleaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however,upheld the validity of the warrant:

Appellant's contention that the search warrant in question was issued for morethan (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, isunpersuasive. He engages in semantic juggling by suggesting that since illegalpossession of shabu, illegal possession of marijuana and illegal possession ofparaphernalia are covered by different articles and sections of the DangerousDrugs Act of 1972, the search warrant is clearly for more than one (1) specificoffense. In short, following this theory, there should have been three (3) separatesearch warrants, one for illegal possession of shabu, the second for illegalpossession of marijuana and the third for illegal possession of paraphernalia. Thisargument is pedantic. The Dangerous Drugs Act of 1972 is a special law that dealsspecifically with dangerous drugs which are subsumed into "prohibited" and"regulated" drugs and defines and penalizes categories of offenses which are

closely related or which belong to the same class or species. Accordingly, one (1)search warrant may thus be validly issued for the said violations of the DangerousDrugs Act.30

Similarly, in another case, 31 the search warrant was captioned: "For Violation of P.D. No. 1866 (IllegalPossession of Firearms, etc.)." The validity of the warrant was questioned on the ground that it was issuedwithout reference to any particular provision in P.D. No. 1866, which punished several offenses. We held,

however, that while illegal possession of firearms is penalized under 1 of P.D. No. 1866 and illegalpossession of explosives is penalized under 3 thereof, the decree is a codification of the various laws onillegal possession of firearms, ammunitions, and explosives which offenses are so related as to be subsumedwithin the category of illegal possession of firearms, etc. under P.D. No. 1866. Thus, only one warrant wasnecessary to cover the violations under the various provisions of the said law.

Particularity of the Place

Accused-appellant contends that the search warrant failed to indicate the place to be searched with

sufficient particularity.

This contention is without merit. As the Solicitor General states:

. . . While the address stated in the warrant is merely "Binhagan St., San Jose,

Quezon City," the trial court took note of the fact that the records of SearchWarrant Case No. 160 contained several documents which identified the premisesto be searched, to wit: 1) the application for search warrant which stated that thepremises to be searched was located in between No. 7 and 11 at Binhagan Street,San Jose, Quezon City; 2) the deposition of witness which described the premisesas "a house without a number located at Binhagan St., San Jose, Quezon City; and3) the pencil sketch of the location of the premises to be searched. In fact, thepolice officers who raided appellant's house under the leadership of Police SeniorInspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilarresides in the same neighborhood in Binhagan where appellant lives and in fact

Aguilar's place is at the end of appellant's place in Binhagan. Moreover, the houseraided by Aguilar's team is undeniably appellant's house and it was really appellantwho was the target. The raiding team even first ascertained through their

informant that appellant was inside his residence before they actually started theiroperation. 32

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, withreasonable effort, ascertain and identify the place intended to be searched. 33 For example, a searchwarrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough,Massachusetts. As it turned out, there were five apartments in the basement and six apartments on boththe ground and top floors and that there was an Apartment Number 3 on each floor. However, thedescription was made determinate by a reference to the affidavit supporting the warrant that theapartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." 34In this

case, the location of accused-appellant's house being indicated by the evidence on record, there can be nodoubt that the warrant described the place to be searched with sufficient particularity.
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In sum, we hold that with respect to the seizure of shabu from accused-appellant's residence, SearchWarrant No. 160 was properly issued, such warrant being founded on probable cause personallydetermined by the judge under oath or affirmation of the deposing witness and particularly describing theplace to be searched and the things to be seized.

Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but notmarijuana. However, seizure of the latter drug is being justified on the ground that the drug was seizedwithin the "plain view" of the searching party. This is contested by acc used-appellant.

Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right tobe in the position to have that view are subject to seizure and may be presented in evidence. 35For thisdoctrine to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c)immediate apparent illegality of the evidence before the police.36The question is whether these requisites

were complied with by the authorities in seizing the marijuana in this case.

Prior Justification and Discovery by Inadvertence

Because the location of the shabu was indicated in the warrant and thus known to the police operatives, it isreasonable to assume that the police found the packets of the shabu first. Once the valid portion of thesearch warrant has been executed, the "plain view doctrine" can no longer provide any basis for admittingthe other items subsequently found. As has been explained:

What the 'plain view' cases have in common is that the police officer in each ofthem had a prior justification for an intrusion in the course of which he cameinadvertently across a piece of evidence incriminating the accused. The doctrineserves to supplement the prior justification whether it be a warrant for anotherobject, hot pursuit, search incident to lawful arrest, or some other legitimatereason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the originaljustification is legitimate only where it is immediately apparent to the police thatthey have evidence before them; the 'plain view' doctrine may not be used toextend a general exploratory search from one object to another until somethingincriminating at last emerges.37

The only other possible justification for an intrusion by the police is the conduct of a search pursuant toaccused-appellant's lawful arrest for possession of shabu. However, a search incident to a lawful arrest islimited to the person of the one arrested and the premises within his immediate control. 38The rationalefor permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence,or to reach for incriminatory evidence and destroy it.AHDcCT

The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, orcontemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-appellant's person or in an area within his immediate control. Its recovery, therefore, presumably during thesearch conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in hisdeposition, was invalid.

Apparent Illegality of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure.This case is similar to People v. Musa 39 in which we declared inadmissible the marijuana recovered byNARCOM agents because the said drugs were contained in a plastic bag which gave no indication of itscontents. We explained:

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner ofthe kitchen, they had no clue as to its contents. They had to ask the appellant whatthe bag contained. When the appellant refused to respond, they opened it andfound the marijuana. Unlike Ker v. California, where the marijuana was visible tothe police officer's eyes, the NARCOM agents in this case could no t have discoveredthe inculpatory nature of the contents of the bag had they not forcibly opened it.

Even assuming then, that the NARCOM agents inadvertently came across theplastic bag because it was within their "plain view," what may be said to be theobject in their "plain view" was just the plastic bag and not the marijuana. Theincriminating nature of the contents of the plastic bag was not immediately

apparent from the "plain view" of said object. It cannot be claimed that the plasticbag clearly betrayed its contents, whether by its distinctive configuration, istransparency, or otherwise, that its contents are obvious to an observer.40

No presumption of regularity may be invoked by an officer in aid of the process when he undertakes tojustify an encroachment of rights secured by the Constitution.41In this case, the marijuana allegedly foundin the possession of accused-appellant was in the form of two bricks wrapped in newsprint. Not being in atransparent container, the contents wrapped in newsprint could not have been readily discernible asmarijuana. Nor was there mention of the time or manner these items were discovered. Accordingly, forfailure of the prosecution to prove that the seizure of the marijuana without a warrant was conducted inaccordance with the "plain view doctrine," we hold that the marijuana is inadmissible in evidence againstaccused-appellant. However, the confiscation of the drug must be upheld.

Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party ineffecting the raid.

Rule 126, 7 of the Revised Rules on Criminal Procedure42provides:

Right to break door or window to effect search . The officer, if refusedadmittance to the place of directed search after giving notice of his purpose andauthority, may break open any outer or inner door or window of a house or anypart of a house or anything therein to execute the warrant or liberate himself orany person lawfully aiding him when unlawfully detained therein.

Accused-appellant's claim that the policemen had clambered up the roof of his house to gain entry and hadbroken doors and windows in the process is unsupported by reliable and competent proof. No affidavit orsworn statement of disinterested persons, like the barangay officials or neighbors, has been presented byaccused-appellant to attest to the truth of his claim.

In contrast, Aguilar and Duano's claim that they had to use some force in order to gain entry cannot bedoubted. The occupants of the house, especially accused-appellant, refused to open the door despite thefact that the searching party knocked on the door several times. Furthermore, the agents saw the suspiciousmovements of the people inside the house. These circumstances justified the searching party's forcibleentry into the house, founded as it is on the apprehension that the execution of their mission would befrustrated unless they do so.

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96, QuezonCity, finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under 16 of R.A.No. 6425, otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a prisonterm ranging from six (6) months of arresto mayor, as minimum, and four (4) years and two (2) months of

prision correccional, as maximum, and ordering the confiscation of 11.14 grams of methamphetaminehydrochloride is AFFIRMED.

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto

Salanguit y Ko guilty of possession of prohibited drugs under 8 of R.A. No. 6425, as amended, andsentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00 is herebyREVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime charged. However, theconfiscation of the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetaminehydrochloride, and its disposition as ordered by the trial court is AFFIRMED.

SO ORDERED. TaCDIc

Bellosillo, Quisumbing, Buenaand De Leon, Jr., JJ.,concur.
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EN BANC

[G.R. No. 82585. November 14, 1988.]

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, andGODOFREDO L. MANZANAS,petitioners,vs.THE HON. RAMON P. MAKASIAR,Presiding Judge of the Regional Trial Court of Manila, Branch 35,UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C.VICTOR, THE CITY FISCAL OF MANILA AND PRESIDENT CORAZON C. AQUINO,respondents .

[G.R. No. 82827. November 14, 1988.]

LUIS D. BELTRAN,petitioner, vs.THE HON. RAMON P. MAKASIAR, Presiding Judge

of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR CITYFISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THEWESTERN POLICE DISTRICT, AND THE MEMBERS OF THE PROCESS SERVING UNITAT THE REGIONAL TRIAL COURT OF MANILA, respondents.

[G.R. No. 83979. November 14, 1988.]

LUIS D. BELTRAN,petitioner,vs.EXECUTIVE SECRETARY CATALINO MACARAIG,SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICESILVESTRE BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGERAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, atManila, respondents .

Angara, Abello, Concepcion, Regala andCruz for petitioners in G.R. No. 82585.

Perfecto V .Fernandez, Jose P.Fernandez andCristobal P.Fernandez for petitioner in G.R. No. 82827 and

83979.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; RESPONDENT IN A CRIMINAL CASE NEED

NOT FILE HIS COUNTER-AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED COMPLETED. Dueprocess of law does not require that the respondent in a criminal case actually file his counter-affidavitsbefore the preliminary investigation is deemed completed. All that is required is that the respondent begiven the opportunity to submit counter-affidavits if he is so minded.

2.ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS;ISSUANCE OF WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONALRESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. This case is not a simple prosecution forlibel. We have as complainant a powerful and popular President who heads the investigation andprosecution service and appoints members of appellate courts but who feels so terribly maligned that she

has taken the unorthodox step of going to court inspite of the invocations of freedom of the press whichwould inevitably follow.

3.ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL PROSECUTION; SUPREME COURT SHOULDDRAW THE DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES ENCOUNTEREDBY ANY ACCUSED. There is always bound to be harassment inherent in any criminal prosecution. Wherethe harassment goes beyond the usual difficulties encountered by any accused and results in anunwillingness of media to freely criticize government or to question government handling of sensitive issuesand public affairs, this Court and not a lower tribunal should draw the demarcation line.

4.CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE DEFAMATION IS NOT AUTHORIZED,CRITICISM IS TO BE EXPECTED AND SHOULD BE BORNE FOR THE COMMON GOOD. As early as March 8,1918, the decision in United States v. Bustos(37 Phil. 731) stated that "(c)omplete liberty to comment onthe conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves theabscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can

be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is notauthorized, criticism is to be expected and should be borne for the common good.

5.REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; LIBEL; RULES THEREON SHOULD BEEXAMINED FROM VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT OFFICIAL; THE SUPREME

COURT SHOULD DRAW A FINE LINE INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. In fact, the Courtobserved that high official position, instead of affording immunity from slanderous and libelous chargeswould actually invite attacks by those who desire to create sensation. It would seem that what wouldordinarily be slander if directed at the typical person should be examined from various perspectives ifdirected at a high government official. Again, the Supreme Court should draw this fine line instead o f leavingit to lower tribunals.

6.ID.; ID.; FREEDOM OF E XPRESSION; SAFEGUARDS IN THE NAME THEREOF SHOULD BE FAITHFULLY APPLIEDIN TRIAL OF LIBEL CASE. In the trial of the libel case against the petitioners, the safeguards in the name offreedom of expression should be faithfully applied.

GUTIERREZ, JR., J., concurring:

1.REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT SHOULD NOT HESITATE TO QUASH ACRIMINAL PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND SUBSTANTIAL JUSTICE. Consistentwith our decision in Salonga v. Cruz Pao(134 SCRA 438 [1985]), the Court should not hesitate to quash acriminal prosecution in the interest of more enlightened and substantial justice where it is not alone thecriminal liability of an accused in a seemingly minor libel case which is involved but broader considerationsof governmental power versus a preferred freedom.

2.ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE PROSECUTION THEREFOR WHERECOMPLAINANT IS THE PRESIDENT; JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT ANDHIS WITNESSES. What the Constitution underscores is the exclusive and personal responsibility of theissuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence ofprobable cause for the issuance of a warrant of arrest, the judge is not required to personally examine thecomplainant and his witnesses. Following established doctrine and procedure, he shall: (1) personallyevaluate the report and the supporting documents submitted by the fiscal regarding the existence ofprobable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no

probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits ofwitnesses to aid him in arriving at a conclusion as to th e existence of probable cause.

3.ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT; RATIONALE. The rationale for thegrant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties

and functions free from any hindrance or distraction, considering that being the Chief Executive of theGovernment is a job that, aside from requiring all of the office-holder's time, also demands undividedattention.

4.ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE OFFICE AND MAY BE INVOKEDONLY BY HOLDER OF OFFICE. But this privilege of immunity from suit, pertains to the President by virtueof the office and may be invoked only by the holder of the office; not by any other person in the President'sbehalf. Thus, an accused in a criminal case in which the President is complainant cannot raise thepresidential privilege as a defense to prevent the case from proceeding against such accused.

5.ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S PREROGATIVE. Moreover, there isnothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded thePresident may shed the protection afforded by the privilege and submit to the court's jurisdiction. Thechoice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decisionthat cannot be assumed and imposed by any other person.

R E S O L U T I O N

PER CURIAMp:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denieddue process when informations for libel were filed against them although the finding of the existence of a

prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2)whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued awarrant for his arrest without personally examining the complainant and the witnesses, if any, to determineprobable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate

criminal proceedings against the petitioners through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary ofJustice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of


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Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion forreconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. Onappeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice onMay 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. Withthese developments, petitioner's contention that they have been denied the administrative remediesavailable under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law inthe preliminary investigation is negated by the fact that instead of submitting his counter-affidavits, he fileda "Motion to Declare Proceeding Closed", in effect waiving his right to refute the complaint by filingcounter-affidavits. Due process of law does not require that the respondent in a criminal case actually filehis counter-affidavits before the preliminary investigation completed. All that is required is that therespondent be given the opportunity to submit counter-affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision onthe issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papersand effects against unreasonable searches and seizures of whatever nature and forany purpose shall be inviolable, and no search warrant or warrant of arrest shallissue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses hemay produce, and particularly describing the place to be searched and the personsor things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant ofauthority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized bylaw", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personallyexamine the complainant and his witnesses determination of probable ca use for the issuance of warrants ofarrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfyhimself the existence of probable cause. In satisfying himself of the existence of probable cause for theissuance of a warrant of arrest, the judge is not required to personally examine the complainant and hiswitnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report andthe supporting documents submitted by the fiscal regarding the existence of probable cause and, on thebasis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he maydisregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him inarriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminaryexamination and investigation of criminal complaints instead of concentrating on hearing and deciding casesfiled before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for theissuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regardto the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excessof jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunityfrom suit impose a correlative disability to file suit". He contends that if criminal proceedings ensue byvirtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for theprosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirectway defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposingherself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise ofPresidential duties and functions free from any hindrance or distraction, considering that being the Chief

Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demandsundivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invokedonly by the holder of the office; not by any other person in the President's behalf Thus, an accused in acriminal case in which the President is complainant cannot raise the presidential privilege as a defense toprevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, ifso minded the President may shed the protection afforded by the privilege and submit to the court'sjurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President'sprerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of theprivileged character or the publication, the Court reiterates that it is not a trier of facts and that such adefense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" onpress freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused theirdiscretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed forcannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part ofthe public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979.The Order to maintain status quocontained in the Resolution of the Court en bancdated April 7, 1988 andreiterated in the Resolution dated April 26, 1988 is LIF TED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,Grio-Aquino, Medialdeaand Regalado, JJ.,concur.

Separate Opinions

GUTIERREZ,JR.,J .,concurring:

I concur with the majority opinion insofar as it revolves the three principal issues mentioned in its openingstatement. However, as to the more important issue on whether or not the prosecution of the libel casewould produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the moreimportant issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pao(134 SCRA 438 [1985]), the Court should not hesitate toquash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alonethe criminal liability of an accused in s seemingly minor libel case which is involved but broaderconsiderations of governmental power versus a p referred freedom.

We have in these four petitions the unusual situation where t he highest official of the Republic and one whoenjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher andchairman of the editorial board, the managing editor and the business manager in a not too indubitable acase for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspapermanwho, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsibletwisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contemptof the complainant. However, this case is not a simple prosecution for libel. We have as complainant apowerful and popular President who heads the investigation and prosecution service and appoints membersof appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going tocourt inspite of the invocations of freedom of the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals anddefense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goesbeyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely


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criticize government or to question government handling of sensitive issues and public affairs, this Courtand not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) sta

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Consti Arrest Search and Seizure Cases 1 to 14