Polirev Bill of Rights Cases 36-48

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55

A.M. No. 1120-MJ May 5, 1976

DOMINADOR C. BALDOZA, complainant,

vs.

HON. JUDGE RODOLFO B. DIMAANO, respondent.

R E S O L U T I O N

ANTONIO, J.:

In a verified letter-complaint dated September 9, 1975, the Municipal Secretary

of Taal, Batangas, charges Municipal Judge Rodolfo B. Dimaano, of the same

municipality, with abuse of authority in refusing to allow employees of the

Municipal Mayor to examine the criminal docket records of the Municipal

Court to secure data in connection with their contemplated report on the

peace and order conditions of the said municipality. Respondent, in answer to

the complaint, stated that there has never been an intention to refuse access

to official court records; that although court records are among public

documents open to inspection not only by the parties directly involved but also

by other persons who have legitimate interest to such inspection, yet the same

is always subject to reasonable regulation as to who, when, where and how

they may be inspected. He further asserted that a court has unquestionably the

power to prevent an improper use or inspection of its records and the

furnishing of copies therefrom may be refused where the person requesting is

not motivated by a serious and legitimate interest but acts out of whim or

fancy or mere curiosity or to gratify private spite or to promote public scandal.

In his answer, the respondent significantly observed:

Restrictions are imposed by the Court for fear of an

abuse in the exercise of the right. For fear that the dirty

hands of partisan politics might again be at play, Some of

the cases filed and decided by the Court after the

declaration of Martial Law and years after the election

still bore the stigma of partisan politics as shown in the

affidavits and testimonies of witnesses.

Without casting aspersion on any particular individual, itis worth mentioning, that the padlocks of the door of the

Court has recently been tampered by inserting papers

and matchsticks.

Under the circumstances, to allow an indiscriminate and

unlimited exercise of the right to free access, might do

more harm than good to the citizenry of Taal. Disorder

and chaos might result defeating the very essence of

their request. The undersigned is just as interested as

Mr. Baldoza in the welfare of the community and the

preservation of our democratic principles.

Be that as it may, a request of this magnitude cannot be

immediately granted without adequate deliberation and

upon advisement, especially so in this case where the

undersigned doubts the propriety of such request.

Hence, it is believed that authority should first be

secured from the Supreme Court, through the Executive

Judge, for the formulation of guidelines and policies on

this matter.

The case was thereupon referred to Judge Francisco Mat. Riodique for

investigation and report. At the preliminary hearing on October 16, 1975, Taal

Mayor Corazon A. Caniza filed a motion to dismiss the complaint to preserve

harmony and (cooperation among officers in the same municipality. This

motion was denied by the Investigating Judge, but after formal investigation,

he recommended the exoneration of respondent. Pertinent portion of his

report reads as follows:

* * * When this case was heard, complainant Dominad

Baldoza informed the Court that he is aware of the

motion to dismiss filed by Mayor Corazon A. Caniza and

that he is in conformity with the dismissal of the

administrative charge against Judge Rodolfo Dimaano.

The Court asked him if he could prove his case and he

said he can. So, the Court denied his oral motion to

dismiss and required him to present his evidence.

Complainant only manifested to the Court that he has n

oral evidence. The only evidence he has are the

exchanged communication which were all in writing an

attached to the record between him and the responde

The Court asked the respondent what he has to say on

the documentary evidence of the complainant. He

manifested that all his answers to the complaint are al

embodied in his answers filed with the Court.

A careful perusal, scrutiny, and study of the

communications between the complainant and the

respondent, together with the answers filed by the

latter, reveal that there is no showing of abuse of

authority on the part of the respondent. The responden

allowed the complainant to open and view the docket

books of the respondent under certain conditions and

under his control and supervision. Complainant admittthat he was aware of the rules and conditions imposed

by the respondent when he went to his office to view h

docket books for the purpose mentioned in his

communication. He also agreed that he is amenable to

such rules and conditions which the respondent may

impose. Under these conditions, therefore, the Court

finds that the respondent has not committed any abuse

of authority.

The complainant was warned to be more cautious in

filing any administrative charge against any public offic

especially, members of the judiciary, considering that a

administrative charge against a member of the judiciar

may expose the latter to public ridicule and scandal

thereby minimizing if not eradicating public trust and

After a careful evaluation of the recommendation, We find that the responde

did not act arbitrarily in the premises. As found by the Investigating Judge, th

respondent allowed the complainant to open and view the docket books of

respondent certain conditions and under his control and supervision. it has no

been shown that the rules and conditions imposed by the respondent were

unreasonable. The access to public records predicated on the right of the

people to acquire information on matters of public concern. Undoubtedly in

democracy, the public has a legitimate interest in matters of social and politic

significance. In an earlier case,1 this Court held that mandamus would lie to

compel the Secretary of Justice and the Register of Deeds to examine the

records of the latter office. Predicating the right to examine the records on

statutory provisions, and to a certain degree by general principles of

democratic institutions, this Court stated that while the Register of Deeds has

discretion to exercise as to the manner in which persons desiring to inspect,examine or copy the records in his office may exercise their rights, such powe

does not carry with it authority to prohibit. Citing with approval People ex rel

Title Guarantee & T. Co. vs. Railly ,2 this Court said:

The subject is necessarily committed, to a great degree

'to his (register of deeds') discretion as to how much of

the conveniences of the office are required to be

preserved for the accomodation of these persons. It is

not his duty to permit the office to be thronged

needlessly with persons examining its books of papers,

but it is his duty to regulate, govern, and control his

office in such a manner as to permit the statutory

advantages to be enjoyed by other persons not

employed by him as largely and extensibly as that



56

consistently can be done * * *. What the law expects and

requires from him is the exercise of an unbiased and

impartial judgment, by which all persons resorting to the

office, under legal authority, and conducting themselves

in an orderly manner, shall be secured their lawful rights

and privileges, and that a corporation formed in the

manner in which the relator has been, shall be permitted

to obtain all the information either by searches,

abstracts, or copies, that the law has entitled it to obtain.

Except, perhaps, when it is clear that the purpose of the

examination is unlawful, or sheer, Idle curiosity, we do

not believe it is the duty under the law of registration

officers to concern themselves with the motives,

reasons, and objects of the person seeking access to the

records. It is not their prerogative to see that the

information which the records contain is not flaunted

before public gaze, or that scandal is not made of it. If it

be wrong to publish the contents of the records, it is the

legislature and not the officials having custody thereof

which is called upon to devise a remedy. As to the moral

or material injury which the publication might inflict on

other parties, that is the publisher's responsibility and

lookout. The publication is made subject to the

consequences of the law.

The concurring opinion of Justice Briones predicated such right not on statutory

grounds merely but on the constitutional right of the press to have access to

information as the essence of press freedom.3

The New Constitution now expressly recognizes that the people are entitled to

information on matters of public concern and thus are expressly granted access

to official records, as well as documents of official acts, or transactions, or

decisions, subject to such limitations imposed by law.4 The incorporation of

this right in the Constitution is a recognition of the fundamental role of free

exchange of information in a democracy. There can be no realistic perception

by the public of the nation's problems, nor a meaningful democratic decision

making if they are denied access to information of general interest. Information

is needed to enable the members of society to cope with the exigencies of the

times. As has been aptly observed: "Maintaining the flow of such information

depends on protection for both its acquisition and its dissemination since, if

either process is interrupted, the flow inevitably ceases. "5 However,

restrictions on access to certain records may be imposed by law. Thus, access

restrictions imposed to control civil insurrection have been permitted upon a

showing of immediate and impending danger that renders ordinary means of

control inadequate to maintain order.6

WHEREFORE, the case against respondent is hereby dismissed.

Fernando, Actg. C.J., Barredo, Actg.(Chairman), Aquino and Martin JJ., concur.

Concepcion Jr., J., is on leave.



57

G.R. No. 85279 July 28, 1989

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T.BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIODE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIOMAGPAYO, petitioner,

vs.

THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C.

PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.

Vicente T. Ocampo & Associates for petitioners.

CORTES, J:

Primarily, the issue raised in this petition is whether or not the Regional Trial

Court can enjoin the Social Security System Employees Association (SSSEA)

from striking and order the striking employees to return to work. Collaterally, it

is whether or not employees of the Social Security System (SSS) have the right

to strike.

The antecedents are as follows:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a

complaint for damages with a prayer for a writ of preliminary injunction against

petitioners, alleging that on June 9, 1987, the officers and members of SSSEA

staged an illegal strike and baricaded the entrances to the SSS Building,

preventing non-striking employees from reporting for work and SSS members

from transacting business with the SSS; that the strike was reported to the

Public Sector Labor - Management Council, which ordered the strikers to return

to work; that the strikers refused to return to work; and that the SSS suffered

damages as a result of the strike. The complaint prayed that a writ of

preliminary injunction be issued to enjoin the strike and that the strikers be

ordered to return to work; that the defendants (petitioners herein) be ordered

to pay damages; and that the strike be declared illegal.

It appears that the SSSEA went on strike after the SSS failed to act on the

union's demands, which included: implementation of the provisions of the old

SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues;

payment of accrued overtime pay, night differential pay and holiday pay;

conversion of temporary or contractual employees with six (6) months or more

of service into regular and permanent employees and their entitlement to the

same salaries, allowances and benefits given to other regular employees of the

SSS; and payment of the children's allowance of P30.00, and after the SSS

deducted certain amounts from the salaries of the employees and allegedly

committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].

The court a quo, on June 11, 1987, issued a temporary restraining order

pending resolution of the application for a writ of preliminary injunction [Rollo,

p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial

court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To thismotion, the SSS filed an opposition, reiterating its prayer for the issuance of a

writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order,

the court a quo denied the motion to dismiss and converted the restraining

order into an injunction upon posting of a bond, after finding that the strike

was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of

the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94],

petitioners filed a petition for certiorari and prohibition with preliminary

injunction before this Court. Their petition was docketed as G.R. No. 79577. In

a resolution dated October 21, 1987, the Court, through the Third Division,

resolved to refer the case to the Court of Appeals. Petitioners filed a motion for

reconsideration thereof, but during its pendency the Court of Appeals on

March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-

137]. Petitioners moved to recall the Court of Appeals' decision. In the

meantime, the Court on June 29,1988 denied the motion for reconsideration in

G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the

decision of the Court of Appeals was also denied in view of this Court's denial

of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant

petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].

Upon motion of the SSS on February 6,1989, the Court issued a temporary

restraining order enjoining the petitioners from staging another strike or from

pursuing the notice of strike they filed with the Department of Labor and

Employment on January 25, 1989 and to maintain the status quo [Rollo, pp.

151-152].

The Court, taking the comment as answer, and noting the reply and

supplemental reply filed by petitioners, considered the issues joined and the

case submitted for decision.

The position of the petitioners is that the Regional Trial Court had no

jurisdiction to hear the case initiated by the SSS and to issue the restraining

order and the writ of preliminary injunction, as jurisdiction lay with the

Department of Labor and Employment or the National Labor Relations

Commission, since the case involves a labor dispute.

On the other hand, the SSS advances the contrary view, on the ground that th

employees of the SSS are covered by civil service laws and rules and

regulations, not the Labor Code, therefore they do not have the right to strik

Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the

Regional Trial Court may enjoin the employees from striking.

In dismissing the petition for certiorari and prohibition with preliminary

injunction filed by petitioners, the Court of Appeals held that since the

employees of the SSS, are government employees, they are not allowed to

strike, and may be enjoined by the Regional Trial Court, which had jurisdictio

over the SSS' complaint for damages, from continuing with their strike.

Thus, the sequential questions to be resolved by the Court in deciding whethe

or not the Court of Appeals erred in finding that the Regional Trial Court did n

act without or in excess of jurisdiction when it took cognizance of the case an

enjoined the strike are as follows:

1. Do the employees of the SSS have the right to strike?

2. Does the Regional Trial Court have jurisdiction to hear the case initiated by

the SSS and to enjoin the strikers from continuing with the strike and to order

them to return to work?

These shall be discussed and resolved seriatim

I

The 1987 Constitution, in the Article on Social Justice and Human Rights,

provides that the State "shall guarantee the rights of all workers to self-

organization, collective bargaining and negotiations, and peaceful concerted

activities, including the right to strike in accordance with law" [Art. XIII, Sec.

31].

By itself, this provision would seem to recognize the right of all workers and

employees, including those in the public sector, to strike. But the Constitution

itself fails to expressly confirm this impression, for in the Sub-Article on the C

Service Commission, it provides, after defining the scope of the civil service a

"all branches, subdivisions, instrumentalities, and agencies of the Governmen

including government-owned or controlled corporations with original

charters," that "[t]he right to self-organization shall not be denied to

government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bi

of Rights also provides that "[tlhe right of the people, including those employ

in the public and private sectors, to form unions, associations, or societies for

purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while

there is no question that the Constitution recognizes the right of government



58

employees to organize, it is silent as to whether such recognition also includes

the right to strike.

Resort to the intent of the framers of the organic law becomes helpful in

understanding the meaning of these provisions. A reading of the proceedings of

the Constitutional Commission that drafted the 1987 Constitution would show

that in recognizing the right of government employees to organize, the

commissioners intended to limit the right to the formation of unions or

associations only, without including the right to strike.

Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that

"[tlhe right to self-organization shall not be denied to government employees"

[Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by

Commissioner Ambrosio B. Padilla, Vice-President of the Commission,

explained:

MR. LERUM. I think what I will try to say will not take that

long. When we proposed this amendment providing for

self-organization of government employees, it does not

mean that because they have the right to organize, they

also have the right to strike. That is a different matter.

We are only talking about organizing, uniting as a union.

With regard to the right to strike, everyone will

remember that in the Bill of Rights, there is a provisionthat the right to form associations or societies whose

purpose is not contrary to law shall not be abridged. Now

then, if the purpose of the state is to prohibit the strikes

coming from employees exercising government

functions, that could be done because the moment that

is prohibited, then the union which will go on strike will

be an illegal union. And that provision is carried in

Republic Act 875. In Republic Act 875, workers, including

those from the government-owned and controlled, are

allowed to organize but they are prohibited from striking.

So, the fear of our honorable Vice- President is

unfounded. It does not mean that because we approve

this resolution, it carries with it the right to strike. That is

a different matter. As a matter of fact, that subject is

now being discussed in the Committee on Social Justice

because we are trying to find a solution to this problem.

We know that this problem exist; that the moment we

allow anybody in the government to strike, then what

will happen if the members of the Armed Forces will go

on strike? What will happen to those people trying to

protect us? So that is a matter of discussion in the

Committee on Social Justice. But, I repeat, the right to

form an organization does not carry with it the right to

strike. [Record of the Constitutional Commission, vol. 1,

p. 569].

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was

repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by

employees in the Government, including instrumentalities exercising

governmental functions, but excluding entities entrusted with proprietary

functions:

.Sec. 11. Prohibition Against Strikes in the Government.

— The terms and conditions of employment in the

Government, including any political subdivision or

instrumentality thereof, are governed by law and it is

declared to be the policy of this Act that employees

therein shall not strike for the purpose of securing

changes or modification in their terms and conditions of

employment. Such employees may belong to any labor

organization which does not impose the obligation to

strike or to join in strike:Provided, however , That this

section shall apply only to employees employed in

governmental functions and not those employed in

proprietary functions of the Government including but

not limited to governmental corporations.

No similar provision is found in the Labor Code, although at one time it

recognized the right of employees of government corporations established

under the Corporation Code to organize and bargain collectively and those in

the civil service to "form organizations for purposes not contrary to law" [Art

244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it

provided that "[t]he terms and conditions of employment of all governmentemployees, including employees of government owned and controlled

corporations, shall be governed by the Civil Service Law, rules and regulations

[now Art. 276]. Understandably, the Labor Code is silent as to whether or not

government employees may strike, for such are excluded from its coverage

[Ibid ]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the

matter.

On June 1, 1987, to implement the constitutional guarantee of the right of

government employees to organize, the President issued E.O. No. 180 which

provides guidelines for the exercise of the right to organize of government

employees. In Section 14 thereof, it is provided that "[t]he Civil Service law an

rules governing concerted activities and strikes in the government service sha

be observed, subject to any legislation that may be enacted by Congress." Th

President was apparently referring to Memorandum Circular No. 6, s. 1987 o

the Civil Service Commission under date April 21, 1987 which, "prior to the

enactment by Congress of applicable laws concerning strike by government

employees ... enjoins under pain of administrative sanctions, all government

officers and employees from staging strikes, demonstrations, mass leaves,

walk-outs and other forms of mass action which will result in temporary

stoppage or disruption of public service." The air was thus cleared of the

confusion. At present, in the absence of any legislation allowing government

employees to strike, recognizing their right to do so, or regulating the exercis

of the right, they are prohibited from striking, by express provision of

Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture,

must be stated that the validity of Memorandum Circular No. 6 is not at issue

But are employees of the SSS covered by the prohibition against strikes?

The Court is of the considered view that they are. Considering that under the

1987 Constitution "[t]he civil service embraces all branches, subdivisions,instrumentalities, and agencies of the Government, including government-

owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l)

see also Sec. 1 of E.O. No. 180 where the employees in the civil service are

denominated as "government employees"] and that the SSS is one such

government-controlled corporation with an original charter, having been

created under R.A. No. 1161, its employees are part of the civil service

[NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are

covered by the Civil Service Commission's memorandum prohibiting strikes.

This being the case, the strike staged by the employees of the SSS was illegal

The statement of the Court in Alliance of Government Workers v. Minister of

Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is

relevant as it furnishes the rationale for distinguishing between workers in th

private sector and government employees with regard to the right to strike:

The general rule in the past and up to the present is tha

'the terms and conditions of employment in the

Government, including any political subdivision or

instrumentality thereof are governed by law" (Section

the Industrial Peace Act, R.A. No. 875, as amended and

Article 277, the Labor Code, P.D. No. 442, as

amended). Since the terms and conditions of governme

employment are fixed by law, government workers

cannot use the same weapons employed by workers in

the private sector to secure concessions from their

employers. The principle behind labor unionism in priva

industry is that industrial peace cannot be secured

through compulsion by law. Relations between private

employers and their employees rest on an essentially

voluntary basis. Subject to the minimum requirements



59

wage laws and other labor and welfare legislation, the

terms and conditions of employment in the unionized

private sector are settled through the process of

collective bargaining. In government employment,

however, it is the legislature and, where properly given

delegated power, the administrative heads of

government which fix the terms and conditions of

employment. And this is effected through statutes or

administrative circulars, rules, and regulations, not

through collective bargaining agreements. [At p. 13;

Emphasis supplied].

Apropos is the observation of the Acting Commissioner of Civil Service, in his

position paper submitted to the 1971 Constitutional Convention, and quoted

with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by

reason of the nature of the public employer and the

peculiar character of the public service, it must

necessarily regard the right to strike given to unions in

private industry as not applying to public employees and

civil service employees. It has been stated that the

Government, in contrast to the private employer,

protects the interest of all people in the public service,

and that accordingly, such conflicting interests as are

present in private labor relations could not exist in the

relations between government and those whom they

employ. [At pp. 16-17; also quoted in National Housing

Corporation v. Juco, G.R. No. 64313, January 17,1985,134

SCRA 172,178-179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize

of government employees, while clinging to the same philosophy, has,

however, relaxed the rule to allow negotiation where the terms and conditions

of employment involved are not among those fixed by law. Thus:

.SECTION 13. Terms and conditions of employment or

improvements thereof, except those that are fixed by

law, may be the subject of negotiations between dulyrecognized employees' organizations and appropriate

government authorities.

The same executive order has also provided for the general mechanism for the

settlement of labor disputes in the public sector to wit:

.SECTION 16. The Civil Service and labor laws and

procedures, whenever applicable, shall be followed in

the resolution of complaints, grievances and cases

involving government employees. In case any dispute

remains unresolved after exhausting all the available

remedies under existing laws and procedures, the parties

may jointly refer the dispute to the [Public Sector Labor-

Management] Council for appropriate action.

Government employees may, therefore, through their unions or associations,

either petition the Congress for the betterment of the terms and conditions of

employment which are within the ambit of legislation or negotiate with the

appropriate government agencies for the improvement of those which are not

fixed by law. If there be any unresolved grievances, the dispute may be

referred to the Public Sector Labor - Management Council for appropriate

action. But employees in the civil service may not resort to strikes, walk-outs

and other temporary work stoppages, like workers in the private sector, to

pressure the Govemment to accede to their demands. As now provided under

Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right

of Government- Employees to Self- Organization, which took effect after the

instant dispute arose, "[t]he terms and conditions of employment in the

government, including any political subdivision or instrumentality thereof and

government- owned and controlled corporations with original charters are

governed by law and employees therein shall not strike for the purpose of

securing changes thereof."

II

The strike staged by the employees of the SSS belonging to petitioner union

being prohibited by law, an injunction may be issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute falls with

the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had

no jurisdiction to issue a writ of injunction enjoining the continuance of the

strike. The Labor Code itself provides that terms and conditions of employme

of government employees shall be governed by the Civil Service Law, rules an

regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector

Labor - Management Council with jurisdiction over unresolved labor disputes

involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdicti

over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercis

of its general jurisdiction under B.P. Blg. 129, as amended, from assuming

jurisdiction over the SSS's complaint for damages and issuing the injunctive w

prayed for therein. Unlike the NLRC, the Public Sector Labor - Management

Council has not been granted by law authority to issue writs of injunction in

labor disputes within its jurisdiction. Thus, since it is the Council, and not the

NLRC, that has jurisdiction over the instant labor dispute, resort to the genera

courts of law for the issuance of a writ of injunction to enjoin the strike is

appropriate.

Neither could the court a quo be accused of imprudence or overzealousness,

for in fact it had proceeded with caution. Thus, after issuing a writ of injunctio

enjoining the continuance of the strike to prevent any further disruption of

public service, the respondent judge, in the same order, admonished the

parties to refer the unresolved controversies emanating from their employer

employee relationship to the Public Sector Labor - Management Council for

appropriate action [Rollo, p. 86].

III

In their "Petition/Application for Preliminary and Mandatory Injunction," and

reiterated in their reply and supplemental reply, petitioners allege that the SS

unlawfully withheld bonuses and benefits due the individual petitioners and

they pray that the Court issue a writ of preliminary prohibitive and mandator

injunction to restrain the SSS and its agents from withholding payment there

and to compel the SSS to pay them. In their supplemental reply, petitioners

annexed an order of the Civil Service Commission, dated May 5, 1989, which

ruled that the officers of the SSSEA who are not preventively suspended and

who are reporting for work pending the resolution of the administrative case

against them are entitled to their salaries, year-end bonuses and other fringe

benefits and affirmed the previous order of the Merit Systems Promotion

Board.

The matter being extraneous to the issues elevated to this Court, it is Our view

that petitioners' remedy is not to petition this Court to issue an injunction, buto cause the execution of the aforesaid order, if it has already become final.

WHEREFORE, no reversible error having been committed by the Court of

Appeals, the instant petition for review is hereby DENIED and the decision of

the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED

Petitioners' "Petition/Application for Preliminary and Mandatory Injunction"

dated December 13,1988 is DENIED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.



60

G.R. No. 78508 March 21, 1994

PHILIPPINE NATIONAL BANK, petitioner,

vs.

FILEMON REMIGIO and the HON. COURT OF APPEALS, respondents.

The Chief Legal Counsel, PNB for petitioner.

Alfredo S. Remigio for private respondent.

VITUG, J.:

Questioned in this appeal instituted by petitioner Philippine National Bank is

the decision, dated 05 May 1987, of the appellate court, which has reversed

the decision of the then Court of First Instance ("CFI" and now Regional Trial

Court) of Isabela, Branch 5, Echague, by ruling in favor of private respondent

Filemon Remigio.

The facts, by and large, are undisputed. In chronology, the events leading to

this appeal may be recited, thus:

(1) On 25 August 1967, private respondent obtained from petitioner a

P65,000.00 loan secured by a real estate mortgage covering five (5) parcels of

land in Isabela described in and embraced by Transfer Certificates of Title

("TCT") No. T-11326, T-681, T-100, and T-27 and Original Certificate of Title No.

I-1673.

(2) Private respondent defaulted; hence on 17 November 1970, petitioner bank

extrajudicially foreclosed on the mortgage, and it acquired the encumbered

assets for the sum of P87,082.00. The sheriff's sale was registered with the

Office of the Register of Deeds of Isabela only on 11 October 1972.

(3) In its letter-offer of 15 February 1971, petitioner bank invited private

respondent to repurchase the foreclosed property for P87,082.00 plus interestand other charges. Before that, or on 18 November 1970 (or one day after the

foreclosure sale), private respondent already had paid an initial P10,000.00 to

redeem the property. Subsequently, additional payments were made by

private respondent, i.e., P10,000.00 on 26 April 1971 and another P20,000.00

on 17 May 1971.

(4) On 21 October 1972, Presidential Decree ("P.D.") No. 27 was enacted into

law that mandated an agrarian reform. Pursuant thereto, an "Operation Land

Transfer Program" was launched; among the areas it covered were the parcels

of land under TCT No. T-100, T-11326 and T-681.

(5) On 17 April 1974, private respondent offered to buy the foreclosed property

for P284,000.00 which was the market and appraised value thereof fixed by

petitioner bank. On 24 December 1974, the Deed of Promise to Sell was

executed between petitioner bank and private respondent.

(6) In a letter, dated 25 August 1978, sent to and received by petitioner bank

on even date, private respondent, through counsel, inquired why he was still

being made to buy the property for P284,000.00 when, in truth, he had already

paid P40,000.00 of the P87,082.00 previously offered by petitioner for the

redemption of the property. There was no reply or response from petitioner.

As of 02 November 1977, private respondent had paid petitioner the total sum

of P207,243.85, itemized, as follows:

1. 18 November 1970 — P10,000.00 609324-E

2. 26 April 1971 — 10,000.00 614980-E

3. 14 May 1971 — 20,000.00 615701-E

4. 17 April 1974 — 5,000.00 898926-F

5. 23 May 1974 — 16,000.00 902110-F

6. 27 May 1974 — 15,000.00 902305-F

7. 14 June 1974 — 10,000.00 903771-F

8. 20 December 1974 — 14,000.00 40135-H

9. 17 December 1976 — 40,030.75 165395-I

10. 7 January 1977 — 22,213.10 166579-I

11. 2 November 1977 — 45,000.00 32641

(7) Private respondent, on 20 September 1978, instituted an action for

"Annulment of Foreclosure Deed, Breach of Contract, Sum of Money andDamages" at the CFI, Echague, Isabela, against petitioner bank and its Branch

Manager Leuterio Genato.

(8) On 19 March 1980, while the case was yet pending with the trial court,

petitioner bank additionally received from the Land Bank of the Philippines

P26,348.12 in cash and P160,000.00 worth of Land Bank Bonds in payment of

the foreclosed parcels covered by TCT No. T-100, T-11326, and T-681.

On 05 December 1981, after trial, the court a quo rendered judgment in favo

of petitioner bank, the dispositive portion of which read:

WHEREFORE, in the light of the foregoing consideration

judgment is hereby rendered:

1. DECLARING the foreclosure sale of the plaintiff's

mortgaged properties, covered by and embraced in

Original Certificate of Title No. I-1673 and Transfer

Certificates of Title Nos. T-11326, T-681, T-100 and T-2

all of the Registry of Deeds of Isabela, as valid;

2. DECLARING the right of the plaintiff to redeem his

foreclosed properties as forever lost;

3. DECLARING the deed of promise the sell executed

between the plaintiff and the defendant bank as valid;

4. DECLARING that the outstanding obligation of the

plaintiff to the bank is P186,874.16 from which shall be

deducted whatever payments are made and/or to be

made by the Land Bank of the Philippines as a result of

Operation Land Transfer Program;

5. ORDERING that whatever balance thereof shall be pa

by the plaintiff to the defendant bank with twelve per

cent (12%) interest until fully paid and conversely,

whatever excess thereof shall be refunded by the

defendant bank to the plaintiff;

6. ORDERING the defendant bank to execute the

corresponding deed of conveyance of the lands to and

favor of the plaintiff after payment is made in

accordance with the above;

7. ORDERING the defendant bank to deliver to the

plaintiff the certificates of title covering the properties

mentioned above;

8. DISMISSING the complaint, with costs against the

plaintiff;

9. ORDERING the plaintiff to pay to the defendant,

Leuterio Genato, the sum of TEN THOUSAND PESOS

(P10,000.00) as attorney's fees and FIVE THOUSAND

PESOS (P5,000.00) as expenses of litigation; and



61

10. DENYING the defendant bank's counterclaim. (pp.

128-129, Rollo.)

Private respondent went to the Court of Appeals, which, on 05 May 1987,

rendered a decision, reversing the trial court and entering a new one in favor of

private respondent. The appellate court adjudged, as follows:

WHEREFORE, the decision appealed from is set aside and

a new one entered declaring the foreclosure of themortgaged properties to be without force and effect;

ordering the defendant bank to release the properties

and the plaintiff to transfer the rights to the tenants-

beneficiaries in favor of the Land Bank of the Philippines;

declaring the deed of promise to sell executed by the

plaintiff and the defendant bank rescinded; ordering the

defendant bank and the Land Bank of the Philippines to

recalculate the amounts of payments due for the transfer

of the subject properties in accordance with this Decision

subject to the provisions of P.D. No. 27 and in

accordance with the mechanics of the Operation Land

Transfer; and annulling the order of the lower court for

the plaintiff to pay the defendant the expenses of

litigation and attorney's fees.

Hence, this petition for review on certiorari .

The petition cannot be sustained.

When Presidential Decree No. 27, "Decreeing the Emancipation of Tenants

from the Bondage of the Soil, Transferring to them the Ownership of the Land

They Till and Providing the Instruments and Mechanism therefor," was enacted

on 21 October 1972, the parcels of land in dispute were clearly still subject to

private respondent's right of redemption. In the foreclosure of real property by

banking institutions, as well as in the extrajudicial foreclosure by any other

mortgagee, the mortgagor could redeem the property within one year from

date of registration of the deed of sale in the appropriate Registry of Deeds

(Santos vs. Register of Deeds of Manila, 38 SCRA 42; Reyes vs. Noblejas, 21

SCRA 1027). In Medida vs. Court of Appeals (208 SCRA 887), we ruled that the

"title to the land sold under a mortgage foreclosure remains with themortgagor or his grantee until the expiration of the redemption period . . ." The

Court of Appeals committed no error when it thereby held:

. . . The foreclosure proceedings were instituted in 1970,

and on this, there appears to be no question. The

registration of the sheriff's sale was, however, effected

only on October 11, 1972. From this date, therefore, the

period of redemption begins to run since, according to

judicial construction, the period of redemption begins to

run not from the date of the sale but from the date of

registration of the sale in the office of the Register of

Deeds, applying this rule not only to an execution sale

but also to an extrajudicial foreclosure sale of registered

land (Salazar vs. Meneses, 118 Phil. 512; Reyes vs.

Noblejas and Santos, 65 O.G. 21, May 26, 1969; Santosvs. RFC, 101 Phil. 980; Reyes vs. Tolentino, G.R. No. L-

29142, Nov. 29, 1971) as required under Section 27 of

Rule 39 of the Rules of Court in relation to Section 50 of

Act No. 496. For this reason, the foreclosure proceedings

were not completed since the period of redemption,

counted from October 11, 1972, would expire on

October 12, 1973. This would thereby bring the disputed

properties under the operation and under the ambit of

the said Opinion which interprets Operation Land

Transfer under P.D. No. 27. . . (Rollo, pp. 87-88.)

It was not thus all that consequential for the appellate court to still rule on the

efficacy or inefficacy of the foreclosure.

In passing, the Secretary of the Department of Justice has himself opined thu

I am aware that a ruling that lands covered by P.D. No.

may not be the object of the foreclosure proceedings

after the promulgation of said decree on October 21,

1972, would concede that P.D. No. 27 had the effect of

impairing the obligation of the duly executed mortgage

contracts affecting said lands. There is no question,

however, that the land reform program of thegovernment as accelerated under P.D. No. 27 and

mandated by the Constitution itself (Art. XIV, Sec. 12),

was undertaken in the exercise of the police power of

the state. It is settled in a long line of decisions of the

Supreme Court that the Constitutional guaranty of non

impairment of obligations of contract is limited by the

exercise of the police power of the state (citations

omitted). One limitation on the contract clause arises

from the police power, the reason being that public

welfare is superior to private rights (citation omitted).

The situation here, is like that in eminent domain

proceedings, where the state expropriates private

property for public use, and the only condition to be

complied with is the payment of just compensation.

Technically, the condemnation proceedings do not imp

the contract to destroy its obligations, but merelyappropriate or take for public use (citation omitted). As

the Land Bank is obliged to settle the obligations secur

by the mortgage, the mortgagee is not left without any

compensation. (Opinion No. 92, Series of 1978; Rollo, p

88-89.)

The opinion deserves respect (42 Am. Jur. p. 421; Cagayan Valley Enterprises,

Inc. vs. Court of Appeals, 179 SCRA 218; Ramon Salaria vs. Hon. Carlos R.

Buenviaje, et al., 81 SCRA 722). This Court, likewise, in a number of cases has

expressed the dictum that police power subordinates the non-impairment

clause of the Constitution (Ortigas and Co. Ltd. Partnership vs. Feati Bank and

Trust Co., 94 SCRA 533; Kabiling vs. National Housing Authority, 156 SCRA 623

Anglo-Fil Trading Corporation vs. Lazaro, 124 SCRA 494).

Petitioner contends that the Court of Appeals has erred in holding that the

bank is entitled only to P87,012.00, and not to P284,000.00, which it consider

to be the fair market value of the property foreclosed. Here, the Court of

Appeals has explained:

We come to the respective liabilities and obligations of

the parties. To date, the defendant bank has received

P207,243.85 from the plaintiff (Stipulation of Facts, No

15). In addition, the defendant bank has also been the

recipient of bonds worth P160,000.00 and cash in the

amount of P26,348.12 from the Land Bank in payment

for the properties covered by TCTs Nos. T-100, T-11326

and T-681 or a total amount of P186,348.12. The

defendant bank has accepted payment of the latter

amount at P170,348.12. All in all, the bank has received

payments in cash and bonds in the amount ofP377,591.97 as compensation for the plaintiff's origina

obligation of P65,000.00. The total amounts paid by

plaintiff represent the consideration in part of the

market price of the properties as found by the Loans an

Discount Section of the defendant bank irrespective of

whether or not the lands are covered by Operation Lan

Transfer. The cash and bonds payments made by the

Land Bank to the PNB on the other hand, represent

payments for the lands covered by Operation Land

Transfer, namely T-100, T-11326 and T-681. For its part

the lower court ruled that the plaintiff's obligation to th

defendant bank amounts to P186,874.16 based on the

market price as determined by the Loans and Discount

Section of the defendant bank which market price



62

amounts to P284,000.00. In view of Our conclusion that

the subject mortgaged properties fall under the ambit

and purview of Operation Land Transfer under P.D. No.

27, it appears that said adjudged amount is in excess of

the rightful amount that is due the defendant bank by

the plaintiff. We hold, therefore, that the defendant bank

is entitled to a payment of P87,012.00 representing the

offer of the defendant bank to the plaintiff in the same

bank's letter to the plaintiff dated February 15, 1971. The

plaintiff is, therefore, entitled to a refund of whatever

over payments were made by him in favor of the

defendant bank. The amount of P87,012.00 represents

the redemption price of the foreclosed properties and as

a release of the said properties for redistribution to

qualified tenants. (pp. 89-90, Rollo.)

In Development Bank of the Philippines vs. Mirang, 66 SCRA 141, we have ruled

that the right of redemption by the mortgagor could be exercised by paying to

the creditor bank all the amounts owing to the latter "on the date of the sale,

with interest on the total indebtedness at the rate agreed upon in the

obligation from said date." In the case of foreclosures by the Philippine

National Bank particularly, Section 20 of its own charter provides:

Sec. 20. Right of Redemption of property foreclosed . —

The mortgagor shall have the right, within the year after

the sale of real estate as a result of the foreclosure of a

mortgage, to redeem the property by paying the amount

fixed by the court in the order of execution, with interest

thereon at the rate specified in the mortgage, and all the

costs and other judicial expenses incurred by the Bank by

reason of the execution and sale and for the custody of

said property. (Republic Act No. 1300)

Accordingly, the appellate court did not commit any reversible error in ordering

petitioner bank and the Land Bank of the Philippines to recalculate the

amounts of payments due for the transfer of the foreclosed property.

WHEREFORE, the appealed decision is AFFIRMED.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.



63

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court,First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J .:

What has given rise to the controversy at bar is the equation by the respondent

Judge of the right of an individual not to "be compelled to be a witness against

himself" accorded by Section 20, Article III of the Constitution, with the right of

any person "under investigation for the commission of an offense . . . to remain

silent and to counsel, and to be informed of such right," granted by the same

provision. The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine

Airlines (PAL), assigned at its Baguio City station. It having allegedly come tolight that he was involved in irregularities in the sales of plane tickets,1 the PAL

management notified him of an investigation to be conducted into the matter

of February 9, 1986. That investigation was scheduled in accordance with PAL's

Code of Conduct and Discipline, and the Collective Bargaining Agreement

signed by it with the Philippine Airlines Employees' Association (PALEA) to

which Ramos pertained. 2

On the day before the investigation, February 8,1986, Ramos gave to his

superiors a handwritten notes3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS

WILLING TO SETTLE IRREGULARITIES ALLEGEDLY

CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.)

SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL

ON OR BEFORE 1700/9 FEB 86.

(

s

)

F

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i

p

e

R

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m

o

s

(

P

r

i

n

t

e

At the investigation of February 9, 1986, conducted by the PAL Branch Mana

in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio

Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward

Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit

Team." Thereafter, his answers in response to questions by Cruz, were taken

down in writing. Ramos' answers were to the effect inter alia that he had not

indeed made disclosure of the tickets mentioned in the Audit Team's findings

that the proceeds had been "misused" by him, that although he had planned

on paying back the money, he had been prevented from doing so, "perhaps

(by) shame," that he was still willing to settle his obligation, and proferred a

"compromise x x to pay on staggered basis, (and) the amount would be know

in the next investigation;" that he desired the next investigation to be at the

same place, "Baguio CTO," and that he should be represented therein by "Shostewardees ITR Nieves Blanco;" and that he was willing to sign his statement

(as he in fact afterwards did).4 How the investigation turned out is not dealt

with the parties at all; but it would seem that no compromise agreement was

reached much less consummated.

About two (2) months later, an information was filed against Felipe Ramos

charging him with the crime of estafa allegedly committed in Baguio City duri

the period from March 12, 1986 to January 29, 1987. In that place and during

that time, according to the indictment,5 he (Ramos) —

.. with unfaithfulness and/or abuse of confidence, did

then and there willfully ... defraud the Philippine Airline

Inc., Baguio Branch, ... in the following manner, to wit:

said accused ... having been entrusted with and receive

in trust fare tickets of passengers for one-way trip and

round-trip in the total amount of P76,700.65, with the

express obligation to remit all the proceeds of the sale,

account for it and/or to return those unsold, ... once in

possession thereof and instead of complying with his

obligation, with intent to defraud, did then and there .

misappropriate, misapply and convert the value of the

tickets in the sum of P76,700.65 and in spite of repeate

demands, ... failed and refused to make good his

obligation, to the damage and prejudice of the offende

party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty,"

and trial thereafter ensued. The prosecution of the case was undertaken by

lawyers of PAL under the direction and supervision of the Fiscal.

At the close of the people's case, the private prosecutors made a written offe

of evidence dated June 21, 1988, 6

which included "the (above mentioned)

statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Bagui

City Ticket Office," which had been marked as Exhibit A, as well as his

"handwritten admission x x given on February 8, 1986," also above referred to

which had been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s

Evidence." 7

Particularly as regards the peoples' Exhibit A, the objection was

that "said document, which appears to be a confession, was taken without th

accused being represented by a lawyer." Exhibit K was objected to "for the

same reasons interposed under Exhibits 'A' and 'J.'



64

By Order dated August 9, 1988,8 the respondent judge admitted all the exhibits

"as part of the testimony of the witnesses who testified in connection

therewith and for whatever they are worth," except Exhibits A and K, which it

rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing

that it is the statement of accused Felipe Ramos taken on February 9, 1986 at

PAL Baguio City Ticket Office, in an investigation conducted by the Branch

Manager x x since it does not appear that the accused was reminded of this

constitutional rights to remain silent and to have counsel, and that when he

waived the same and gave his statement, it was with the assistance actually of

a counsel." He also declared inadmissible "Exhibit K, the handwritten admission

made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same

reason stated in the exclusion of Exhibit 'A' since it does not appear that the

accused was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration.9 It was denied, by

Order dated September 14, 1988.10 In justification of said Order, respondent

Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121

SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219,

and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in

custodial investigations the right to counsel may be waived but the waiver shall

not be valid unless made with the assistance of counsel," and the explicit

precept in the present Constitution that the rights in custodial investigation

"cannot be waived except in writing and in the presence of counsel." He

pointed out that the investigation of Felipe Ramos at the PAL Baguio Station

was one "for the offense of allegedly misappropriating the proceeds of thetickets issued to him' and therefore clearly fell "within the coverage of the

constitutional provisions;" and the fact that Ramos was not detained at the

time, or the investigation was administrative in character could not operate to

except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in

the petition for certiorari and prohibition at bar, filed in this Court by the

private prosecutors in the name of the People of the Philippines. By Resolution

dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to

comment on the petition, and directed issuance of a "TEMPORARY

RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further

with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe

Ramos), including the issuance of any order, decision or judgment in the

aforesaid case or on any matter in relation to the same case, now pending

before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." TheCourt also subsequently required the Solicitor General to comment on the

petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor

General have all been filed. The Solicitor General has made common cause with

the petitioner and prays "that the petition be given due course and thereafter

judgment be rendered setting aside respondent Judge's Orders . . . and

ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor

General has thereby removed whatever impropriety might have attended the

institution of the instant action in the name of the People of the Philippines by

lawyers de parte of the offended party in the criminal action in question.

The Court deems that there has been full ventilation of the issue — of whether

or not it was grave abuse of discretion for respondent Judge to have excluded

the People's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973Constitution,

11 to which respondent Judge has given a construction that is

disputed by the People. The section reads as follows:

SEC. 20. No person shall be compelled to be a witness

against himself Any person under investigation for the

commission of an offense shall have the right to remain

silent and to counsel, and to be informed of such right.

No force, violence, threat, intimidation, or any other

means which vitiates the free will shall be used against

him. Any confession obtained in violation of this section

shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights,

dealt with in the section, namely:

1) the right against self-incrimination — i.e., the right o

person not to be compelled to be a witness against

himself — set out in the first sentence, which is a

verbatim reproduction of Section 18, Article III of the

1935 Constitution, and is similar to that accorded by th

Fifth Amendment of the American Constitution,12

and

2) the rights of a person in custodial interrogation, i.e.,

the rights of every suspect "under investigation for thecommission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the

individuality and disparateness of these rights. It has placed the rights in

separate sections. The right against self- incrimination, "No person shall be

compelled to be a witness against himself," is now embodied in Section 17,

Article III of the 1987 Constitution. The lights of a person in custodial

interrogation, which have been made more explicit, are now contained in

Section 12 of the same Article III. 13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV o

the 1973 Constitution, is accorded to every person who gives evidence,

whether voluntarily or under compulsion of subpoena, in any civil, criminal, o

administrative proceeding.14

The right is NOT to "be compelled to be a witne

against himself"

The precept set out in that first sentence has a settled meaning.15 It prescrib

an "option of refusal to answer incriminating questions and not a prohibition

inquiry."16 It simply secures to a witness, whether he be a party or not, the

right to refue to answer any particular incriminatory question, i.e., one the

answer to which has a tendency to incriminate him for some crime. However

the right can be claimed only when the specific question, incriminatory in

character, is actually put to the witness. It cannot be claimed at any other tim

It does not give a witness the right to disregard a subpoena, to decline to

appear before the court at the time appointed, or to refuse to testify

altogether. The witness receiving a subpoena must obey it, appear as require

take the stand, be sworn and answer questions. It is only when a particular

question is addressed to him, the answer to which may incriminate him forsome offense, that he may refuse to answer on the strength of the

constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not

impose on the judge, or other officer presiding over a trial, hearing or

investigation, any affirmative obligation to advise a witness of his right agains

self-incrimination. It is a right that a witness knows or should know, in

accordance with the well known axiom that every one is presumed to know t

law, that ignorance of the law excuses no one. Furthermore, in the very natu

of things, neither the judge nor the witness can be expected to know in

advance the character or effect of a question to be put to the latter.17

The right against self-incrimination is not self- executing or automatically

operational. It must be claimed. If not claimed by or in behalf of the witness,

the protection does not come into play. It follows that the right may be waive

expressly, or impliedly, as by a failure to claim it at the appropriate time.18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or

better said, group of rights. These rights apply to persons "under investigatio

for the commission of an offense," i.e., "suspects" under investigation by poli

authorities; and this is what makes these rights different from that embodied

the first sentence, that against self-incrimination which, as aforestated,

indiscriminately applies to any person testifying in any proceeding, civil,

criminal, or administrative.



65

This provision granting explicit rights to persons under investigation for an

offense was not in the 1935 Constitution. It is avowedly derived from the

decision of the U.S. Supreme Court in Miranda v. Arizona,19

a decision

described as an "earthquake in the world of law enforcement."20

Section 20 states that whenever any person is "under investigation for the

commission of an offense"--

1) he shall have the right to remain silent and to counsel,and to be informed of such right,

21

2) nor force, violence, threat, intimidation, or any other


him;22

and

3) any confession obtained in violation of x x (these rights

shall be inadmissible in evidence.23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid

down for a person in police custody, "in-custody interrogation" being regarded

as the commencement of an adversary proceeding against the suspect.24

He must be warned prior to any questioning that he has the right to remainsilent, that anything he says can be used against him in a court of law, that he

has the right to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise those rights must be afforded to him throughout the

interrogation. After such warnings have been given, such opportunity afforded

him, the individual may knowingly and intelligently waive these rights and

agree to answer or make a statement. But unless and until such warnings and

waivers are demonstrated by the prosecution at the trial, no evidence obtained

as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a

police-dominated atmosphere, resulting in self-incriminating statement

without full warnings of constitutional rights."25

The rights above specified, to repeat, exist only in "custodial interrogations," or

"in-custody interrogation of accused persons."26

And, as this Court has already

stated, by custodial interrogation is meant "questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way."27

The situation

contemplated has also been more precisely described by this Court."28

.. . After a person is arrested and his custodial

investigation begins a confrontation arises which at best

may be tanned unequal. The detainee is brought to an

army camp or police headquarters and there questioned

and "cross-examined" not only by one but as many

investigators as may be necessary to break down his

morale. He finds himself in strange and unfamiliar

surroundings, and every person he meets he considers

hostile to him. The investigators are well-trained and

seasoned in their work. They employ all the methods and

means that experience and study have taught them to

extract the truth, or what may pass for it, out of the

detainee. Most detainees are unlettered and are not

aware of their constitutional rights. And even if they

were, the intimidating and coercive presence of the

officers of the law in such an atmosphere overwhelms

them into silence. Section 20 of the Bill of Rights seeks to

remedy this imbalance.

Not every statement made to the police by a person involved in some crime is

within the scope of the constitutional protection. If not made "under custodial

interrogation," or "under investigation for the commission of an offense," the

statement is not protected. Thus, in one case,29

where a person went to a

police precinct and before any sort of investigation could be initiated, declare

that he was giving himself up for the killing of an old woman because she was

threatening to kill him by barang, or witchcraft, this Court ruled that such a

statement was admissible, compliance with the constitutional procedure on

custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1

that against self-incrimination and (2) those during custodial interrogation

apply to persons under preliminary investigation or already charged in court

a crime.

It seems quite evident that a defendant on trial or under preliminary

investigation is not under custodial interrogation. His interrogation by the

police, if any there had been would already have been ended at the time of th

filing of the criminal case in court (or the public prosecutors' office). Hence,

with respect to a defendant in a criminal case already pending in court (or the

public prosecutor's office), there is no occasion to speak of his right while

under "custodial interrogation" laid down by the second and subsequent

sentences of Section 20, Article IV of the 1973 Constitution, for the obvious

reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary

investigation before the public prosecutor), in common with all other person

possesses the right against self- incrimination set out in the first sentence of

Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answ

a specific incriminatory question at the time that it is put to him.30

Additionally, the accused in a criminal case in court has other rights in the

matter of giving testimony or refusing to do so. An accused "occupies a

different tier of protection from an ordinary witness." Under the Rules of Cou

in all criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself,31

and 2) to testify as

witness in his own behalf; but if he offers himself as a witness he may be crosexamined as any other witness; however, his neglect or refusal to be a witnes

shall not in any manner prejudice or be used against him.32

The right of the defendant in a criminal case "to be exempt from being a

witness against himself' signifies that he cannot be compelled to testify or

produce evidence in the criminal case in which he is the accused, or one of th

accused. He cannot be compelled to do so even by subpoena or other proces

or order of the Court. He cannot be required to be a witness either for the

prosecution, or for a co-accused, or even for himself.33

In other words — unl

an ordinary witness (or a party in a civil action) who may be compelled to

testify by subpoena, having only the right to refuse to answer a particular

incriminatory question at the time it is put to him-the defendant in a crimina

action can refuse to testify altogether. He can refuse to take the witness stan

be sworn, answer any question.34

And, as the law categorically states, "his

neglect or refusal to be a witness shall not in any manner prejudice or be useagainst him."

35

If he should wish to testify in his own behalf, however, he may do so. This is h

right. But if he does testify, then he "may be cross- examined as any other

witness." He may be cross-examined as to any matters stated in his direct

examination, or connected therewith .36

He may not on cross-examination

refuse to answer any question on the ground that the answer that he will give

or the evidence he will produce, would have a tendency to incriminate him fo

the crime with which he is charged.

It must however be made clear that if the defendant in a criminal action be

asked a question which might incriminate him, not for the crime with which h

is charged, but for some other crime, distinct from that of which he is accuse

he may decline to answer that specific question, on the strength of the right



66

against self-incrimination granted by the first sentence of Section 20, Article IV

of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus,

assuming that in a prosecution for murder, the accused should testify in his

behalf, he may not on cross-examination refuse to answer any question on the

ground that he might be implicated in that crime of murder; but he may decline

to answer any particular question which might implicate him for a different and

distinct offense, say, estafa.

In fine, a person suspected of having committed a crime and subsequentlycharged with its commission in court, has the following rights in the matter of

his testifying or producing evidence, to wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the

public prosecutor, for preliminary investigation), but

after having been taken into custody or otherwise

deprived of his liberty in some significant way, and on

being interrogated by the police: the continuing right to

remain silent and to counsel, and to be informed thereof,

not to be subjected to force, violence, threat,

intimidation or any other means which vitiates the free

will; and to have evidence obtained in violation of these

rights rejected; and

2) AFTER THE CASE IS FILED IN COURT — 37

a) to refuse to be a witness;

b) not to have any prejudice

whatsoever result to him by such

refusal;

c) to testify in his own behalf,

subject to cross-examination by

the prosecution;

d) WHILE TESTIFYING, to refuse to

answer a specific question which

tends to incriminate him for somecrime other than that for which he

is then prosecuted.

It should by now be abundantly apparent that respondent Judge has

misapprehended the nature and import of the disparate rights set forth in

Section 20, Article IV of the 1973 Constitution. He has taken them as applying

to the same juridical situation, equating one with the other. In so doing, he has

grossly erred. To be sure, His Honor sought to substantiate his thesis by

arguments he took to be cogent and logical. The thesis was however so far

divorced from the actual and correct state of the constitutional and legal

principles involved as to make application of said thesis to the case before him

tantamount to totally unfounded, whimsical or capricious exercise of power.

His Orders were thus rendered with grave abuse of discretion. They should be

as they are hereby, annulled and set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in

any sense under custodial interrogation, as the term should be properly

understood, prior to and during the administrative inquiry into the discovered

irregularities in ticket sales in which he appeared to have had a hand. The

constitutional rights of a person under custodial interrogation under Section

20, Article IV of the 1973 Constitution did not therefore come into play, were of

no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily

answered questions posed to him on the first day of the administrative

investigation, February 9, 1986 and agreed that the proceedings should be

recorded, the record having thereafter been marked during the trial of the

criminal action subsequently filed against him as Exhibit A, just as it is obvious

that the note (later marked as Exhibit K) that he sent to his superiors on

February 8,1986, the day before the investigation, offering to compromise his

liability in the alleged irregularities, was a free and even spontaneous act on his

part. They may not be excluded on the ground that the so-called "Miranda

rights" had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the

violation of the right of any person against self-incrimination when the

investigation is conducted by the complaining parties, complaining companie

or complaining employers because being interested parties, unlike the police

agencies who have no propriety or pecuniary interest to protect, they may in

their over-eagerness or zealousness bear heavily on their hapless suspects,whether employees or not, to give statements under an atmosphere of mora

coercion, undue ascendancy and undue influence." It suffices to draw attenti

to the specific and peremptory requirement of the law that disciplinary

sanctions may not be imposed on any employee by his employer until and

unless the employee has been accorded due process, by which is meant that

the latter must be informed of the offenses ascribed to him and afforded

adequate time and opportunity to explain his side. The requirement entails t

making of statements, oral or written, by the employee under such

administrative investigation in his defense, with opportunity to solicit the

assistance of counsel, or his colleagues and friends. The employee may, of

course, refuse to submit any statement at the investigation, that is his privile

But if he should opt to do so, in his defense to the accusation against him, it

would be absurd to reject his statements, whether at the administrative

investigation, or at a subsequent criminal action brought against him, becaus

he had not been accorded, prior to his making and presenting them, his

"Miranda rights" (to silence and to counsel and to be informed thereof, etc.)which, to repeat, are relevant only in custodial investigations. Indeed, it is sel

evident that the employee's statements, whether called "position paper,"

"answer," etc., are submitted by him precisely so that they may be admitted

and duly considered by the investigating officer or committee, in negation or

mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the

judge's expressed apprehensions may be realized, that violence or intimidati

undue pressure or influence be brought to bear on an employee under

investigation — or for that matter, on a person being interrogated by anothe

whom he has supposedly offended. In such an event, any admission or

confession wrung from the person under interrogation would be inadmissible

in evidence, on proof of the vice or defect vitiating consent, not because of a

violation of Section 20, Article IV of the 1973 Constitution, but simply on the

general, incontestable proposition that involuntary or coerced statements mnot in justice be received against the makers thereof, and really should not b

accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the

Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9,

1988 and September 14, 1988, and he is hereby ordered to admit in evidence

Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and

thereafter proceed with the trial and adjudgment thereof. The temporary

restraining order of October 26, 1988 having become functus officio, is now

declared of no further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.



67

G.R. No. 135562 November 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

BENITO BRAVO, accused-appellant.

GONZAGA-REYES, J.:

On January 15, 1994 the decomposing body of a child was found in a vacant lot

along the road leading to Patul, Rosario Santiago City.1 Her body was found

between two concrete fences half naked, shirtless and skirt pulled up, her

panty stuffed in her mouth.2 The body was identified to be that of a nine year

old girl named Juanita Antolin, a resident of Rosario, Santiago City and known

in her neighborhood as Len-len. Her body was found about 700 meters from

her house putrid and in rigor mortis.3 The scalp on the left side of her head was

detached exposing a fracture on the left temporal lobe of her skull. Vaginal

examination showed fresh laceration at 2:30 o'clock and old lacerations at 5:00

and 7:00 o'clock and easily accepts two fingers. The cause of death was

cerebral hemorrhage.4

On May 25, 1994 an Information for rape with homicide 5 was filed againstherein accused-appellant which states:

That on or about the 12th day of January 1994, in the

municipality of Santiago, province of Isabela, Philippines,

and within the jurisdiction of this Honorable Court, the

said accused, did then and there, willfully, unlawfully and

feloniously, with lewd design and by means of violence

and intimidation, have carnal knowledge with one

Juanita Antolin y Jandoc, a nine year old girl, against her

will and consent; that on the occasion and by reason of

the said rape, the said accused, did then and there,

willfully, unlawfully and feloniously, assault, attack and

hit with a blunt instrument the said Juanita Antolin y

Jandoc, inflicting upon her, a fracture on the skull, which

directly caused her death.

CONTRARY TO LAW.

On September 26, 1994 the accused was arraigned and pleaded not

guilty to the crime charged.6

Evelyn San Mateo an eight year old second grader from Rosario,

Santiago City neighbor and cousin of the victim testified that she

was with the deceased the night before she disappeared. She stated

that while they stood on the roadside watching "Home Along Da

Riles" from an open window of a neighbor's house the appellant

approached them and asked Len-Len to come with him to a birthday

party and then he will buy her Coke and balut. Len-Len asked her to

go with them but she did not want to because she was watchingtelevision. Len-Len went alone with the accused. The following

morning Len-Len's mother told Evelyn and her mother that Len-Len

was missing. In court, Evelyn positively identified the appellant as

the person last seen with Len-len before she was found dead.7

The owner of the house where Len-len and Evelyn watched television, Gracia

Monahan, corroborated Evelyn's testimony that on the evening of January 12,

1994 she saw the appellant talking to Len-len while the two girls were watching

television from her open window and that when she looked again towards the

end of the program to the direction where the girls were situated, only Evelyn

was left watching television. Monahan testified that she is familiar with the

appellant and the two children because they are neighbors.8

The Chief of the Intelligence Section of the Santiago Police Department,

Alexander Mico, testified that on January 15, 1994 his office received a repor

that a dead body was found in a vacant lot. The body was later identified as

Juanita Antolin. Mico stated that he interviewed San Mateo who pointed to t

appellant as the man last seen with the deceased. Mico found the appellant a

his place of work at the Spring Garden Resort at Sinsayon, Santiago City. Upon

seeing Bravo, Mico informed him that he is a suspect in the killing of a girl in

Rosario, Santiago City and asked him to come with him for questioning. The

appellant agreed. Mico further narrated in court that at the police station the

appellant admitted he was with the girl and he carried her on his shoulder bu

he was so drunk that night that he does not remember what he did to her.9 O

cross-examination Mico admitted that he did not inform the appellant of his

constitutional rights to remain silent, to counsel and of his right against self-

incrimination before the appellant made the said admission because accordin

to Mico he was only informally interviewing the accused when he made the

admission and that custodial interrogation proper was conducted by the

assigned investigator.10

The appellant Benito Bravo testified in court that on his way home after work

at around five o'clock in the afternoon of January 12, 1994 he was invited to g

on a drinking spree at Purok 1, Rosario, Santiago City where he and four othe

men consumed five round bottles of gin until 7:30 that evening. He then

headed for home. Appellant admitted in court that he passed by the house of

Gracia Monahan but stated that he did not see the two girls watching televisi

along the road. At home, he found his mother very sick and so he decided tostay home all night. He woke up the following morning at around 4:30 a.m. an

prepared to go to work. On January 15, 1994 a policeman came to his place o

work and apprehended him without a warrant of arrest and at the police

station he was forced to admit commission of the crime of rape with homicid

of Juanita Antolin. The appellant denied the accusation and stated that the

deceased was his godchild and that he has known Fely Handoc, the mother o

the child, for three years prior to this proceedings.11

Juanito Bravo, the brother of the appellant testified that the appellant stayed

home on the night of January 12, 1994 to take care of their sick mother who

died a few days thereafter.12

Ernesto Pastor, the foreman at the Spring Garden Resort where the appellant

was employed, testified that he has known the appellant for a long time and

that he knows him to be hardworking and of good moral character. Pastor

corroborated the appellant's testimony that police investigator Mico came to

the Spring Garden Resort and arrested Bravo without a warrant.13

The testimony of the Municipal Health Officer who conducted the autopsy w

dispensed with by the prosecution as the handwritten Autopsy Report made

the Municipal Health Officer of Santiago, Isabela, marked as Exhibit B, was

admitted by both parties.14

The Report reads:

AUTOPSY REPORT



68

P

U

R

O

K

2

,

R

O

S

A

R

I

O

,

S

A

N

T

I

A

GO

,

I

S

A

B

E

L

A

J

A

N

UA

R

Y

1

5

,

1

9

9

4

2

:3

0

P

.

M

.

JUANITA ANTOLIN

PUROK 1, BARANGAY ROSARIO

AGE: 9

FATHER: ANTONIO

MOTHER: OFELIA JANDOC

Was investigated under the mango tree where the crim

was committed and left side of the face is covered by

sand (done by anay) with rigor mortis and with

putrification, easy pulling of the skin and plenty of sma

worms coming out from the ears, nose, eyes and mout(without panty), the whole body is edematous.

After complete washing, coming out of small worms on

both eyes and ears and mouth, scalp on the left side w

detached and skull exposed.

— Fracture of the skull with left temporal

— Edematous

— Abdomen, extremities has no pertinent findings

except easy pulling of skin and all are edematous

Vaginal examination — shows fresh laceration at 2:30

o'clock, old lacerations at 5:00 and 7:00 o'clock — coul

easily accept two fingers.

Cause of death — cerebral hemorrhage (fracture of sku

temporal region, left).15

On August 25, 1998 the trial court rendered judgment finding the accused

guilty of the crime charged as follows:

Wherefore, finding the accused BENITO BRAVO "GUILT

beyond reasonable doubt of the crime of RAPE WITH

HOMICIDE punishable under Art. 335 of the Revised

Penal Code, as amended by Republic Act 7659, the cou

sentences him the penalty of DEATH and ordering him

pay the heirs of Juanita Antolin y Jandoc the amount of

one hundred thousand pesos (P100,000.00) as indemn

and three hundred thousand pesos (P300,000.00) as

exemplary damages.

SO ORDERED.16

and held that abuse of confidence and treachery attended the

commission of the crime.

This case is before us on automatic review in view of the penalty imposed by

the trial court.

Both counsels for the accused-appellant and the appellee plead for the

acquittal of the accused. Both the accused-appellant and the appellee invoke

the constitutionally guarded presumption of innocence in favor of the accuse

and the latter's right to remain silent and to counsel. The testimony of the

policeman that the accused admitted he was with the victim on the evening o

January 12, 1994 but the latter was too drunk to remember what happened

should have been held inadmissible by the trial court in view of the policema

own admission in court that although he informed the accused that he is a

suspect in the rape and killing of one Juanita Antolin he did not inform the

accused of his constitutional rights before he asked him of his participation in

the crime under investigation. Both the appellant and the appellee are in

agreement that the trial court grievously erred in finding the accused guilty

beyond reasonable doubt based on the sole circumstantial evidence that the

victim was last seen by her cousin in the company of the accused whereas the

Rules of Court clearly requires the presence of at least two proven



69

circumstances the combination of which creates an unbroken link between the

commission of the crime charged and the guilt of the accused beyond

reasonable doubt. The single circumstance proven by the prosecution that the

victim was last seen conversing with the accused two days before she was

found dead cannot serve as basis for any conclusion leading to the guilt of the

accused of the crime charged. The evidence for the prosecution falls short of

the quantum of evidence required by the Rules to establish guilt of the accused

beyond reasonable doubt. In sum, both the appellant and the appellee profess

that the presumption of innocence of the accused was not successfully

overturned by the prosecution.

We resolve to acquit Benito Bravo.

Sec. 12 of Article III of the 1987 Constitution embodies the mandatory

protection afforded a person under investigation for the commission of a crime

and the correlative duty of the State and its agencies to enforce such mandate.

It states:

Sec. 12. (1) Any person under investigation for the

commission of an offense shall have the right to be

informed of his right to remain silent and to have

competent and independent counsel preferably of his

own choice. If the person cannot afford the services of

counsel, he must be provided with one. These rightscannot be waived except in writing and in the presence

of counsel.

(1) No

torture,

force,

violence,

threat,

intimidation

or any other

means which

vitiate the

free will shall

be used

against him.Secret

detention

places,

solitary,

incommunic

ado, or other

similar forms

of detention

are

prohibited.

(2) Any

confession

or admission

obtained in

violation of

this or

section 17

hereof shall

be

inadmissible

in evidence

against him.

(3) The law

shall provide

for penal

and civil

sanctions for

violations of

this sectio

as well as

compensa

n to and

rehabilitat

n of victim

of torture

similar

practices,

and their

families.

The mantle of protection under this constitutional provision cover

the period from the time a person is taken into custody for

investigation of his possible participation in the commission of a

crime or from the time he is singled out as a suspect in the

commission of a crime although not yet in custody.17

The

exclusionary rule sprang from a recognition that police interrogato

procedures lay fertile grounds for coercion, physical and

psychological, of the suspect to admit responsibility for the crime

under investigation. It was not intended as a deterrent to the

accused from confessing guilt, if he voluntarily and intelligently so

desires but to protect the accused from admitting what he is

coerced to admit although untrue.18

Law enforcement agencies a

required to effectively communicate the rights of a person underinvestigation and to insure that it is fully understood. Any measure

short of this requirement is considered a denial of such

right.19

Courts are not allowed to distinguish between preliminary

questioning and custodial investigation proper when applying the

exclusionary rule. Any information or admission given by a person

while in custody which may appear harmless or innocuous at the

time without the competent assistance of an independent counse

should be struck down as inadmissible.20

It has been held, howev

that an admission made to news reporters or to a confidant of the

accused is not covered by the exclusionary rule.21

The admission allegedly made by the appellant is not in the form of a written

extra-judicial confession; the admission was allegedly made to the arresting

officer during an "informal talk" at the police station after his arrest as a prim

suspect in the rape and killing of Juanita Antolin. The arresting policemantestified that the appellant admitted that he was with the victim on the even

of January 12, 1994, the probable time of the commission of the crime and th

he carried her on his shoulder but that he was too drunk to remember what

subsequently happened. The arresting policeman admitted that he did not

inform the appellant of his constitutional rights to remain silent and to couns

We note that the alleged admission is incriminating because it places the

accused in the company of the victim at the time the crime was probably

committed.

The exclusionary rule applies.

The accused was under arrest for the rape and killing of Juanita Antolin and a

statement allegedly made by him pertaining to his possible complicity in the

crime without prior notification of his constitutional rights is inadmissible in

evidence. The policeman's apparent attempt to circumvent the rule by insistithat the admission was made during an "informal talk" prior to custodial

investigation proper is not tenable. The appellant was not invited to the polic

station as part of a general inquiry for any possible lead to the perpetrators o

the crime under investigation. At the time the alleged admission was made th

appellant was in custody and had been arrested as the prime suspect in the

rape and killing of Juanita Antolin. The exclusionary rule presumes that the

alleged admission was coerced, the very evil the rule stands to avoid.

Supportive of such presumption is the absence of a written extra-judicial

confession to that effect and the appellant's denial in court of the alleged ora

admission. The alleged admission should be struck down as inadmissible.

We also agree with both the appellant and the appellee that the trial court

erred in rendering judgment convicting the appellant based on a single

circumstance. Only one circumstantial evidence was proven i .e., that the vict



70

went with the accused to buy soda and balut on the evening of January 12,

1994. Section 4 Rule 133 of the Rules of Court states:

Sec. 4. Circumstantial evidence, when sufficient . —

Circumstantial evidence is sufficient for conviction if:

a) There is

more than

onecircumstance

;

b) The facts

from which

the

inferences

are derived

are proven;

and

c) The

combination

of all the

circumstance

s is such as

to produce a

conviction

beyond

reasonable

doubt.

In the case of People vs. Adorfina 22

this court held that:

. . . a judgment of conviction based on circumstantial

evidence can be upheld only if the circumstances proven

constitute an unbroken chain which leads to one fair and

reasonable conclusion which points to the accused, to

the exclusion of all others, as the guilty person, that is,the circumstances proved must be consistent with each

other, consistent with the hypothesis that the accused is

guilty, and at the same time inconsistent with any other

hypothesis except that of guilty.

The rule is clear that there must be at least two proven circumstances which in

complete sequence leads to no other logical conclusion than that of the guilt of

the accused. The two witnesses for the prosecution testified to a single

circumstance, namely, that the victim was seen in the company of the

appellant on the night of January 12, 1994. This circumstance alone cannot be

the basis of a judgment of conviction. There is no other proven circumstance

linking the appellant to the crime as the perpetrator thereof to the exclusion of

any other possible culprit e.g. that the appellant was at or near the scene of the

crime at the time it was probably committed or any other evidence to establish

the appellant's participation in the commission thereof. The prosecution's

theory that the appellant is guilty of the crime charged because he was seen

with the victim a few days before she was found dead is not tenable. The

approximate time the crime was committed was not established at all because

the physician who made the autopsy report was discharged as a witness when

both parties admitted the report. The two day interval between the evening of

January 12th when the victim was seen with the appellant and the day when

her dead body was found on January 15th presents a wide range of possibilities

as to the perpetrator of the crime. The Rules and jurisprudence demand no less

than an unbroken chain of proven facts pointing to the appellant as the guilty

person to the exclusion of all others. This the evidence for the prosecution

failed to do. Both counsels for the appellant and the appellee are correct in

their submission that the single circumstance that the victim was seen with the

appellant two days before she was found dead is clearly insufficient to

overcome the presumption of innocence in favor of the accused.

The rape and killing of nine year old Juanita Antolin is supported by concrete

evidence undisputed by both parties. The unpardonable assault on the child i

tragic and the trial court may have been swayed by the tide of human

indignation. We must however uphold the primacy of the presumption of

innocence in favor of the accused when the evidence at hand falls short of the

quantum required to support conviction.

Wherefore, the judgment appealed from is hereby reversed. The appellant

Benito Bravo is acquitted of the crime charged herein. The Director of theBureau of Corrections is ordered to immediately release him from custody

unless he is detained for another legal cause.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban

Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago and De Leon, Jr., JJ.,

concur.



71

G.R. No. L-56291 June 27, 1988

CRISTOPHER GAMBOA, petitioner,

vs.

HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br.XXIX, respondent.

Rene V. Sarmiento for petitioner.

PADILLA, J.:

Petition for certiorari and prohibition, with prayer for a temporary restraining

order, to annul and set aside the order dated 23 October 1980 of the Court of

First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled

"People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales,

Accused," and to restrain the respondent court from proceeding with the trial

of the aforementioned case.

Petitioner alleges that:

On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for

vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia.

Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked

for vagrancy and then detained therein together with several others.

The following day, 20 July 1979, during the lineup of five (5) detainees,

including petitioner, complainant Erlinda B. Bernal pointed to petitioner and

said, "that one is a companion." After the Identification, the other detainees

were brought back to their cell but petitioner was ordered to stay on. While the

complainant was being interrogated by the police investigator, petitioner was

told to sit down in front of her.

On 23 July 1979, an information for robbery was filed against the petitioner.

On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held.

On 2 April 1980, the prosecution formally offered its evidence and then rested

its case.

On 14 July 1980, petitioner, by counsel, instead of presenting his defense,

manifested in open court that he was filing a Motion to Acquit or Demurrer to

Evidence. On 13 August 1980, petitioner filed said Motion predicated on the

ground that the conduct of the line-up, without notice to, and in the absence

of, his counsel violated his constitutional rights to counsel and to due process.

On 23 October 1980, the respondent court issued the following order (assailed

in the petition at bar) denying the Motion to Acquit:

For resolution is a motion to acquit the accused based on

the grounds that the constitutional rights of the said

accused, to counsel and to due process, have been

violated. After considering the allegations and arguments

in support of the said motion in relation to the evidence

presented, the Court finds the said motion to be without

merit and, therefore, denies the same.

The hearing of this case for the purpose of presenting the

evidence for the accused is hereby set on November 28,

1980, at 8:30 o'clock in the morning.

Hence, the instant petition.

On 3 March 1981, the Court issued a temporary restraining order "effective a

of this date and continuing until otherwise ordered by the court". 1

Petitioner contends that the respondent judge acted in excess of jurisdiction

and with grave abuse of discretion, in issuing the assailed order. He insists tha

said order, in denying his Motion To Acquit, is null and void for being violative

of his rights to counsel and to due process.2

We find no merit in the contentions of petitioner.

To begin with, the instant petition is one for certiorari, alleging grave abuse o

discretion, amounting to lack of jurisdiction, committed by the respondent

judge in issuing the questioned order dated 23 October 1980.

It is basic, however, that for certiorari to lie, there must be a capricious,

arbitrary and whimsical exercise of power, the very antithesis of judicial

prerogative in accordance with centuries of both civil law and common law

traditions.3 To warrant the issuance of the extraordinary writ of certiorari, the

alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so

gross or grave, as when power is exercised in an arbitrary or despotic manner

by reason of passion, prejudice or personal hostility, or the abuse must be so

patent as to amount to an evasion of positive duty, or to a virtual refusal to

perform a duty enjoined by law, or to act at all, in contemplation of law.4 Thi

is not the situation in the case at bar. The respondent court considered

petitioner's arguments as well as the prosecution's evidence against him, and

required him to present his evidence.

The rights to counsel and to due process of law are indeed two (2) of the

fundamental rights guaranteed by the Constitution, whether it be the 1973 o

1987 Constitution. In a democratic society, like ours, every person is entitled

the full enjoyment of the rights guaranteed by the Constitution.

On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973

Constitution, reads:

No person shall be compelled to be a witness against

himself Any person under investigation for the

commission of an offense shall have the right to remaisilent and to counsel, and to be informed of such right.

No force, violence, threat, intimidation, or any other


him. Any confession obtained in violation of this sectio

shall be inadmissible in evidence.

The same guarantee, although worded in a different manner, is included in th

1987 Constitution. Section 12 (1, 2 & 3), Article III thereof provides:

Sec. 12 (1) Any person under investigation for the

commission of an offense shall have the right to be

informed of his right to remain silent and to have

competent and independent counsel preferably of his

own choice. If the person cannot afford the services of

counsel, he must be provided with one. These rights

cannot be waived except in writing and in the presence

of counsel.

(2) No torture, force, violence, threat, intimidation, or

any other means which vitiate the free will shall be use

against him. Secret detention places, solitary,

incommunicado, or other similar forms of detention ar

prohibited.

(3) Any confession or admission obtained in violation o

this or the preceding section shall be inadmissible in

evidence against him.



72

The right to counsel attaches upon the start of an investigation, i.e. when the

investigating officer starts to ask questions to elicit information and/or

confessions or admissions from the respondent/accused. At such point or

stage, the person being interrogated must be assisted by counsel to avoid the

pernicious practice of extorting false or coerced admissions or confessions from

the lips of the person undergoing interrogation, for the commission of an

offense.

Any person under investigation must, among other things, be assisted bycounsel. The above-cited provisions of the Constitution are clear. They leave no

room for equivocation. Accordingly, in several cases, this Court has consistently

held that no custodial investigation shall be conducted unless it be in the

presence of counsel, engaged by the person arrested, or by any person in his

behalf, or appointed by the court upon petition either of the detainee himself,

or by anyone in his behalf, and that, while the right may be waived, the waiver

shall not be valid unless made in writing and in the presence of counsel.5

As aptly observed, however, by the Solicitor General, the police line-up (at

least, in this case) was not part of the custodial inquest, hence, petitioner was

not yet entitled, at such stage, to counsel. The Solicitor General states:

When petitioner was Identified by the complainant at the

police line-up, he had not been held yet to answer for a

criminal offense. The police line-up is not a part of thecustodial inquest, hence, he was not yet entitled to

counsel. Thus, it was held that when the process had not

yet shifted from the investigatory to the accusatory as

when police investigation does not elicit a confession the

accused may not yet avail of the services of his lawyer

(Escobedo v. Illinois of the United States Federal

Supreme Court, 378 US 478, 1964). Since petitioner in

the course of his Identification in the police line-up had

not yet been held to answer for a criminal offense, he

was, therefore, not deprived of his right to be assisted by

counsel because the accusatory process had not yet set

in. The police could not have violated petitioner's right to

counsel and due process as the confrontation between

the State and him had not begun. In fact, when he was

Identified in the police line-up by complainant he did not

give any statement to the police. He was, therefore, not

interrogated at all as he was not facing a criminal charge.

Far from what he professes, the police did not, at that

stage, exact a confession to be used against him. For it

was not he but the complainant who was being

investigated at that time. He "was ordered to sit down in

front of the complainant while the latter was being

investigated" (par. 3.03, Petition). Petitioner's right to

counsel had not accrued.6

Even under the constitutional guarantees obtaining in the United States,

petitioner would have no cause for claiming a violation of his rights to counsel

and due process. In Kirby vs. Illinois,7 the facts of the case and the votes of the

Justices therein are summarized as fellows:

After arresting the petitioner and a companion and

bringing them to a police station, police officers learned

that certain items found in their possession had been

stolen in a recent robbery. The robbery victim was

brought to the police station and immediately Identified

the petitioner and his companion as the robbers. No

attorney was present when the Identification was made,

and neither the petitioner nor his companion had asked

for legal assistance or had been advised of any right to

the presence of counsel. Several weeks later, the

petitioner and his companion were indicted for the

robbery. At trial in an Illinois state court, the robbery

victim testified that he had seen the petitioner and his

companion at the police station, and he pointed them

out in the courtroom and Identified them as the robbers.

The petitioner and his companion were convicted, and

the Illinois Appellate Court, First District, affirmed the

petitioner's conviction, holding that the constitutional

rule requiring the exclusion of evidence derived from

out-of-court Identification procedures conducted in the

absence of counsel did not apply to pre-indictment

Identifications (121 III App 2d 323, 257 NEE 2d 589).

On certiorari, the United States Supreme Court, althounot agreeing on an opinion, affirmed. In an opinion by

STEWART, J., announcing the judgment of the court an

expressing the view of four members of the court, it w

held that the constitutional right to counsel did not

attach until judicial criminal proceedings were initiated

and that the exclusionary rule relating to out-of-court

Identifications in the absence of counsel did not apply

Identification testimony based upon a police station

show-up which took place before the accused had been

indicted or otherwise formally charged with any crimin

offense.

BURGER, Ch. J., concurring, joined in the plurality opini

and expressed his agreement that the right to counsel

did not attach until criminal charges were formally mad

against an accused.

POWELL, J., concurred in the result on the ground that

the exclusionary rule should not be extended.

BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ.,

dissented on the grounds that although Supreme Cour

decisions establishing the exclusionary rule happened t

involve post-indictment Identifications, the rationale

behind the rule was equally applicable to the present

case.

WHITE, J., dissented on the grounds that Supreme Cou

decisions establishing the exclusionary rule governed th

present case. 8

Mr. Justice Stewart, expressing his view and that of three other members9 o

the Court, said:

In a line of constitutional cases in this Court stemming

back to the Court's landmark opinion in Powell v.

Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 52

it has been firmly established that a person's Sixth and

Fourteenth Amendment right to counsel attaches only

or after the time that adversary judicial proceedings ha

been initiated against him. See Powell v. Alabama, sup

Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct

1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7

Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US

335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733; White v

Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050;

Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S

Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d

1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18

Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US

26 L Ed 2d 387, 90 S Ct. 1999.

This is not to say that a defendant in a criminal case ha

constitutional right to counsel only at the trial itself. Th

Powell case makes clear that the right attaches at the

time of arraignment and the Court has recently held th

it exists also at the time of a preliminary hearing.

Coleman v. Alabama,supra. But the point is that, while

members of the court have differed as to existence of



73

the right to counsel in the contexts of some of the above

cases, all of those cases have involved points of time at

or after the initiation of adversary judicial criminal

proceedings — whether by way of formal charge,

preliminary hearing, indictment, information, or

arraignment. (Emphasis supplied).10

As may be observed, the 1973 and 1987 Philippine Constitutions go farther and

beyond the guarantee of the right to counsel under the Sixth and FourteenthAmendments to the U.S. Constitution. For while, under the latter, the right to

counsel "attaches only at or after the time that adversary judicial proceedings

have been initiated against him (the accused)," under the 1973 and 1987

Philippine Constitutions, the right to counsel attaches at the start of

investigation against a respondent and, therefore, even before adversary

judicial proceedings against the accused have begun.

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to

extend to those under police investigation the right to counsel, this occasion

may be better than any to remind police investigators that, while the Court

finds no real need to afford a suspect the services of counsel during a police

line-up, the moment there is a move or even an urge of said investigators to

elicit admissions or confessions or even plain information which may appear

innocent or innocuous at the time, from said suspect, he should then and there

be assisted by counsel, unless he waives the right, but the waiver shall be made

in writing and in the presence of counsel.

On the right to due process, the Court finds that petitioner was not, in any way,

deprived of this substantive and constitutional right, as he was duly

represented by a member of the Bar. He was accorded all the opportunities to

be heard and to present evidence to substantiate his defense; only that he

chose not to, and instead opted to file a Motion to Acquit after the prosecution

had rested its case. What due process abhors is the absolute lack of

opportunity to be heard.11

The case at bar is far from this situation.

In any event, certiorari and prohibition are not the proper remedies against an

order denying a Motion To Acquit. Section 1, Rule 117 of the Rules of Court

provides that, upon arraignment, the defendant shall immediately either move

to quash the complaint or information or plead thereto, or do both and that, if

the defendant moves to quash, without pleading, and the motion is withdrawnor overruled, he should immediately plead, which means that trial must

proceed. If, after trial on the merits, judgment is rendered adversely to the

movant (in the motion to quash), he can appeal the judgment and raise the

same defenses or objections (earlier raised in his motion to quash) which

would then be subject to review by the appellate court.

An order denying a Motion to Acquit (like an order denying a motion to quash)

is interlocutory and not a final order. It is, therefore, not appealable. Neither

can it be the subject of a petition for certiorari. Such order of denial may only

be reviewed, in the ordinary course of law, by an appeal from the judgment,

after trial. As stated inCollins vs. Wolfe, 12

and reiterated in Mill vs. Yatco, 13 the

accused, after the denial of his motion to quash, should have proceeded with

the trial of the case in the court below, and if final judgment is rendered

against him, he could then appeal, and, upon such appeal, present the

questions which he sought to be decided by the appellate court in a petition for

certiorari.

In Acharon vs. Purisima,14

the procedure was well defined, thus:

Moreover, when the motion to quash filed by Acharon to

nullify the criminal cases filed against him was denied by

the Municipal Court of General Santos his remedy was

not to file a petition for certiorari but to go to trial

without prejudice on his part to reiterate the special

defenses he had invoked in his motion and, if, after trial

on the merits, an adverse decision is rendered, to appeal

therefrom in the manner authorized by law. This is the

procedure that he should have followed as authorized by

law and precedents. Instead, he took the usual step of

filing a writ of certiorari before the Court of First Instan

which in our opinion is unwarranted it being contrary t

the usual course of law.15

Conformably with the above rulings, whether or not petitioner was, afforded

his rights to counsel and to due process is a question which he could raise, as

defense or objection, upon the trial on the merits, and, if that defense or

objection should fail, he could still raise the same on appeal.

On the other hand, if a defendant does not move to quash the complaint or

information before he pleads, he shall be taken to have waived all objections

which are grounds for a motion to quash, except where the complaint or

information does not charge an offense, or the court is without jurisdiction o

the same.16

Here, petitioner filed a Motion To Acquit only after the prosecution had

presented its evidence and rested its case. Since the exceptions, above-stated

are not applicable, petitioner is deemed to have waived objections which are

grounds for a motion to quash.

Besides, the grounds relied upon by petitioner in his Motion to Acquit are not

among the grounds provided in Sec. 2, Rule 117 of the Rules of Court for

quashing a complaint or information. Consequently, the lower court did not e

in denying petitioner's Motion to Acquit.

WHEREFORE, the petition is DISMISSED. The temporary restraining order issu

on 3 March 1981 is LIFTED. The instant case is remanded to the respondent

court for further proceedings to afford the petitioner-accused the opportunit

to present evidence on his behalf.

This decision is immediately executory. With costs against the petitioner.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-

Aquino and Medialdea, JJ., concur.

Separate Opinions

CRUZ, J., concurring:

I concur because it does not appear from the narration of the facts in this cas

that improper suggestions were made by the police to influence the witnesse

in the Identification of the accused.

In United States v. Wade, 388 U.S. 218, the U.S. Supreme Court observed

through Justice Brennan:

What facts have been disclosed in specific cases about

the conduct of pretrial confrontations for Identification

illustrate both the potential for substantial prejudice to

the accused at that stage and the need for its revelatio

at trial. A commentator provides some striking exampl

In a Canadian case ... the

defendant had been picked out o

a line-up of six men, of which he

was the only Oriental. In other



74

cases, a black-haired suspect was

placed among a group of light-

haired persons, tall suspects have

been made to stand with short

non-suspects, and, in a case where

the perpetrator of the crime was

known to be a youth, a suspect

under twenty was placed in a line-

up with five other persons, all of

whom were forty or over.

Similarly state reports, in the course of describing prior

Identifications admitted as evidence of guilt, reveal

numerous instances of suggestive procedures, for

example, that all in the lineup but the suspect were

known to the Identifying witness, that the other

participants in a lineup were grossly dissimilar in

appearance to the suspect, that only the suspect was

required to wear distinctive clothing which the culprit

allegedly wore, that the witness is told by the police that

they have caught the culprit after which the defendant is

brought before the witness alone or is viewed in jail, that

the suspect is pointed out before or during a lineup, and

that the participants in the lineup are asked to try on an

article of clothing which fits only the suspect.

I reserve my judgment on any subsequent case where the question raised here

is submitted anew and the same or similar circumstances as those described

above are present.

GUTIERREZ, JR., J., concurring

Pro hac vice.

YAP, C.J., Dissenting:

I am constrained to dissent from the majority opinion. In my opinion, after the

police line-up with other detainees in which the accused was pointed out bythe complainant as one of the "companions" of those who allegedly committed

the crime of robbery, the investigatory part of the proceedings started when

the accused was singled out and "ordered to sit down in front of the

complainant" while the latter gave her statement which led to the filing of the

information. The majority opinion holds that the police line-up was not part of

the custodial inquest, hence, petitioner (the herein accused) was not yet

entitled to counsel. But this overlooks the fact that the incident objected to

took place after the police line-up, when the accused was made to confront the

complainant, and the latter made her statement which became the basis of the

information filed against the accused. At this point, it can be said that the

custodial investigation had already begun.

The applicable provision of the 1973 Constitution states that "any person under

investigation for the commission of an offense shall have the right to counsel,

and to be informed of such rights." (Sec. 20, Art. IV, Bill of Rights). A similar

provision has been incorporated in the 1987 Constitution. I do not agree with

the view that since the accused was not asked any question, he was not "under

investigation." The investigation commenced the moment he was taken from

the police line-up and made to sit in front of the complainant, while the latter

made her statement to the police.

Neither do I agree with the view of the Solicitor General, which is sustained by

the majority opinion, that the accused at that point was not entitled to be

informed of his right to counsel, because "the police did not, at that stage,

exact a confession to be used against him." The right to counsel must be

afforded to the accused the moment he is under custodial investigation, and

not only when a confession is being exacted from him.

For these reasons, I am of the opinion that the petitioner should have been

informed, at that stage, of his constitutional right to counsel, and accordingly

vote to grant the petition.

SARMIENTO, J., dissenting:

Insofar as the majority would deny the accused the right to counsel (at an in-

custody confrontation) in this particular case, I am constrained to dissent.

The accused was arrested, without a warrant, for vagrancy, on July 19, 1979.

is clear that at that time, no probable cause to indict him for robbery existed

For this reason, he was "booked" for vagrancy alone and thereafter detained

Unexplainably, he was made to take part in a line-up the following day, July 2

1979, upon the behest, apparently, of the complainant, who unabashedly

pointed to him as a "companion" in a certain robbery case. He was later made

to "sit down in front of" the said complainant while the latter gave her

statement which led to the filing of the information.

It is the view of the majority that "the police line-up (at least, in this case) wa

not part of the custodial inquest, hence, petitioner was not yet entitled, at su

stage, to counsel." It is my own view, however, that given the particular

circumstances of this case, he was entitled to counsel pursuant to theprovisions of Section 12, of Article III, of the Bill of Rights.

It is noteworthy that the accused was already in custody at the time. And

although he was detained for some other cause vagrancy, it left him little or n

choice other than to face his accuser. It cannot be then gainsaid that as far as

he was concerned, the situation had reached what American jurisprudence

refers to as the "critical stage"1 of the inquiry, in which the confrontation

becomes an accusation rather than a routine procedure preliminary to a form

prosecution. He was in custody not for the "usual questioning" but for an

existing charge, although the investigation was in connection with another

offense. The confrontation, exacerbated by the pressure of actual custody, ha

become adversarial rather than informational, and the assistance of counsel t

the accused, a matter of Constitutional necessity. That he was being held for

vagrancy whereas the line-up involved a complaint for robbery does not mak

a difference to him. He was under detention, a development that made himvulnerable to pressures, whatever offense was involved.

While I am not prepared to hold that a police line-up per se amounts to a

critical stage of the investigation, for in most cases, it merely forms part of th

evidence gathering process, the fact that the accused herein stood charged fo

an offense and has been detained therefor should make this case different.2

So also is it noteworthy that the accused was made to confront the

complainant in an interrogation following the line-up. It is my belief that, oth

than such a line-up, the subsequent confrontation had reinforced his need fo

legal assistance. Verily, he was an unwilling audience to his accuser, if a mute

witness to his own prosecution. InPeople v. Hassan,3 we struck down a simila

confrontation for repugnancy to the Constitution. This Court said therein:

The manner by which Jose Samson, Jr. was made to

confront and Identify the accused alone at the funeral

parlor, without being placed in a police line-up, was

"pointedly suggestive, generated confidence where the

was none, activated visual imagination, and, all told,

subverted his reliability as eyewitness. This unusual,

coarse, and highly singular method of Identification,

which revolts against the accepted principles of scienti

crime detection, alienates the esteem of every just ma

and commands neither our respect nor acceptance."

Moreover, the corfrontation arranged by the police

investigator between the self-proclaimed eyewitness a

the accused did violence to the right of the latter to

counsel in all stages of the investigation into the



75

commission of a crime especially at its most crucial stage

the Identification of the accused.

As it turned out, the method of Identification became

just a confrontation. At that critical and decisive

moment, the scales of justice tipped unevenly against the

young, poor, and disadvantaged accused. The police

procedure adopted in this case in which only the a d was

presented to witness Samson, in the funeral parlor, andin the presence of the grieving relatives of the victim, is

as tainted as an uncounselled confession and thus falls

within the same ambit of the constitutionally entrenched

protection. For this infringement alone, the accused-

appellant should be acquitted. 4

It is in such cases indeed that the more questions are asked, the more

convinced is the complainant of the accused's guilt, and in extreme cases, the

better "convinced" is the accused himself that he is truly guilty. The presence of

counsel would have obviated the one-sidedness of the investigation.

To be sure, the majority itself would concede that something is amiss in such a

procedure, at least in this case ("this occasion may be better than any to

remind police investigators that, while the Court finds no real need to afford a

suspect the services of counsel during a police line-up, the moment there is amove or even an urge of said investigators to elicit admissions or confessions or

even plain information which may appear innocent or innocuous at the time,

from said suspect, he should then and there be assisted by counsel, unless he

waives the right, but the waiver shall be made in writing and in the presence of

counsel").5 The point, however, is that such a police procedure is invariably

intended to secure admissions from the accused (assuming that he is

Identified), unless the authorities are possessed of other evidence. They would

not be so obtuse to do a useless act.

To my mind, the accused herein was not only denied the right to counsel which

I hold to be available under the circumstances, he was deprived of due process

the day he was arrested. Albeit it does not appear to have been put in issue in

his petition, he was not apprised of his rights when he was apprehended for

vagrancy. The next day, he was placed in a line-up upon a complaint for

robbery. To my mind, he was a readymade suspect for an offense in which noprobable cause existed to warrant a custodial interrogation. If this is a

customary police procedural, I do not hesitate to condemn it for Constitutional

reasons.

While it is true that he was not denied the right to present his defense, it does

not cure the defect surrounding his arrest, or make admissible whatever

evidence gathered in the course of the confrontation and investigation. The

resulting unfairness has deprived him of the opportunity to prepare a

meaningful defense.

I agree that in terms of the provisions of the Rules of Court, the accused may

not challenge, on certiorari, a denial of a motion to acquit. But it seems to me

that the case, for all its Constitutional implications, should stand on its merits

and not on the errors of the counsel for the accused on his choice of judicial

remedies. Accordingly, I am for denying the Rules of their rigidity and fordeciding on the petition on Constitutional grounds.

I vote to grant the petition.

Gancayco, J., concur

Separate Opinions

CRUZ, J., concurring:

I concur because it does not appear from the narration of the facts in this cas

that improper suggestions were made by the police to influence the witnesse

in the Identification of the accused.

In United States v. Wade, 388 U.S. 218, the U.S. Supreme Court observed

through Justice Brennan:

What facts have been disclosed in specific cases about

the conduct of pretrial confrontations for Identification

illustrate both the potential for substantial prejudice to

the accused at that stage and the need for its revelatio

at trial. A commentator provides some striking exampl

In a Canadian case ... the

defendant had been picked out o

a line-up of six men, of which he

was the only Oriental. In other

cases, a black-haired suspect wa

placed among a group of light-

haired persons, tall suspects hav

been made to stand with short

non-suspects, and, in a case whe

the perpetrator of the crime was

known to be a youth, a suspect

under twenty was placed in a lin

up with five other persons, all of

whom were forty or over.

Similarly state reports, in the course of describing prior

Identifications admitted as evidence of guilt, reveal

numerous instances of suggestive procedures, for

example, that all in the lineup but the suspect were

known to the Identifying witness, that the other

participants in a lineup were grossly dissimilar in

appearance to the suspect, that only the suspect was

required to wear distinctive clothing which the culprit

allegedly wore, that the witness is told by the police ththey have caught the culprit after which the defendant

brought before the witness alone or is viewed in jail, th

the suspect is pointed out before or during a lineup, an

that the participants in the lineup are asked to try on a

article of clothing which fits only the suspect.

I reserve my judgment on any subsequent case where the question raised he

is submitted anew and the same or similar circumstances as those described

above are present.

GUTIERREZ, JR., J., concurring

Pro hac vice.

YAP, C.J., Dissenting:

I am constrained to dissent from the majority opinion. In my opinion, after th

police line-up with other detainees in which the accused was pointed out by

the complainant as one of the "companions" of those who allegedly committ

the crime of robbery, the investigatory part of the proceedings started when

the accused was singled out and "ordered to sit down in front of the

complainant" while the latter gave her statement which led to the filing of th

information. The majority opinion holds that the police line-up was not part o

the custodial inquest, hence, petitioner (the herein accused) was not yet

entitled to counsel. But this overlooks the fact that the incident objected to

took place after the police line-up, when the accused was made to confront t

complainant, and the latter made her statement which became the basis of th



76

information filed against the accused. At this point, it can be said that the

custodial investigation had already begun.

The applicable provision of the 1973 Constitution states that "any person under

investigation for the commission of an offense shall have the right to counsel,

and to be informed of such rights." (Sec. 20, Art. IV, Bill of Rights). A similar

provision has been incorporated in the 1987 Constitution. I do not agree with

the view that since the accused was not asked any question, he was not "under

investigation." The investigation commenced the moment he was taken fromthe police line-up and made to sit in front of the complainant, while the latter

made her statement to the police.

Neither do I agree with the view of the Solicitor General, which is sustained by

the majority opinion, that the accused at that point was not entitled to be

informed of his right to counsel, because "the police did not, at that stage,

exact a confession to be used against him." The right to counsel must be

afforded to the accused the moment he is under custodial investigation, and

not only when a confession is being exacted from him.

For these reasons, I am of the opinion that the petitioner should have been

informed, at that stage, of his constitutional right to counsel, and accordingly, I

vote to grant the petition.

SARMIENTO, J., dissenting:

Insofar as the majority would deny the accused the right to counsel (at an in-

custody confrontation) in this particular case, I am constrained to dissent.

The accused was arrested, without a warrant, for vagrancy, on July 19, 1979. It

is clear that at that time, no probable cause to indict him for robbery existed.

For this reason, he was "booked" for vagrancy alone and thereafter detained.

Unexplainably, he was made to take part in a line-up the following day, July 20,

1979, upon the behest, apparently, of the complainant, who unabashedly

pointed to him as a "companion" in a certain robbery case. He was later made

to "sit down in front of" the said complainant while the latter gave her

statement which led to the filing of the information.

It is the view of the majority that "the police line-up (at least, in this case) was

not part of the custodial inquest, hence, petitioner was not yet entitled, at such

stage, to counsel." It is my own view, however, that given the particular

circumstances of this case, he was entitled to counsel pursuant to the

provisions of Section 12, of Article III, of the Bill of Rights.

It is noteworthy that the accused was already in custody at the time. And

although he was detained for some other cause vagrancy, it left him little or no

choice other than to face his accuser. It cannot be then gainsaid that as far as

he was concerned, the situation had reached what American jurisprudence

refers to as the "critical stage"1 of the inquiry, in which the confrontation

becomes an accusation rather than a routine procedure preliminary to a formal

prosecution. He was in custody not for the "usual questioning" but for an

existing charge, although the investigation was in connection with another

offense. The confrontation, exacerbated by the pressure of actual custody, had

become adversarial rather than informational, and the assistance of counsel to

the accused, a matter of Constitutional necessity. That he was being held for

vagrancy whereas the line-up involved a complaint for robbery does not make

a difference to him. He was under detention, a development that made him

vulnerable to pressures, whatever offense was involved.

While I am not prepared to hold that a police line-up per se amounts to a

critical stage of the investigation, for in most cases, it merely forms part of the

evidence gathering process, the fact that the accused herein stood charged for

an offense and has been detained therefor should make this case different.2

So also is it noteworthy that the accused was made to confront the

complainant in an interrogation following the line-up. It is my belief that, other

than such a line-up, the subsequent confrontation had reinforced his need fo

legal assistance. Verily, he was an unwilling audience to his accuser, if a mute

witness to his own prosecution. InPeople v. Hassan,3 we struck down a simila

confrontation for repugnancy to the Constitution. This Court said therein:

The manner by which Jose Samson, Jr. was made to

confront and Identify the accused alone at the funeral

parlor, without being placed in a police line-up, was

"pointedly suggestive, generated confidence where thewas none, activated visual imagination, and, all told,

subverted his reliability as eyewitness. This unusual,

coarse, and highly singular method of Identification,

which revolts against the accepted principles of scienti

crime detection, alienates the esteem of every just ma

and commands neither our respect nor acceptance."

Moreover, the corfrontation arranged by the police

investigator between the self-proclaimed eyewitness a

the accused did violence to the right of the latter to

counsel in all stages of the investigation into the

commission of a crime especially at its most crucial stag

the Identification of the accused.

As it turned out, the method of Identification became just a confrontation. At that critical and decisive

moment, the scales of justice tipped unevenly against t

young, poor, and disadvantaged accused. The police

procedure adopted in this case in which only the a d wa

presented to witness Samson, in the funeral parlor, an

in the presence of the grieving relatives of the victim, is

as tainted as an uncounselled confession and thus falls

within the same ambit of the constitutionally entrench

protection. For this infringement alone, the accused-

appellant should be acquitted. 4

It is in such cases indeed that the more questions are asked, the more

convinced is the complainant of the accused's guilt, and in extreme cases, the

better "convinced" is the accused himself that he is truly guilty. The presence

counsel would have obviated the one-sidedness of the investigation.

To be sure, the majority itself would concede that something is amiss in such

procedure, at least in this case ("this occasion may be better than any to

remind police investigators that, while the Court finds no real need to afford

suspect the services of counsel during a police line-up, the moment there is a

move or even an urge of said investigators to elicit admissions or confessions

even plain information which may appear innocent or innocuous at the time,

from said suspect, he should then and there be assisted by counsel, unless he

waives the right, but the waiver shall be made in writing and in the presence

counsel").5 The point, however, is that such a police procedure is invariably

intended to secure admissions from the accused (assuming that he is

Identified), unless the authorities are possessed of other evidence. They wou

not be so obtuse to do a useless act.

To my mind, the accused herein was not only denied the right to counsel whiI hold to be available under the circumstances, he was deprived of due proces

the day he was arrested. Albeit it does not appear to have been put in issue in

his petition, he was not apprised of his rights when he was apprehended for

vagrancy. The next day, he was placed in a line-up upon a complaint for

robbery. To my mind, he was a readymade suspect for an offense in which no

probable cause existed to warrant a custodial interrogation. If this is a

customary police procedural, I do not hesitate to condemn it for Constitution

reasons.

While it is true that he was not denied the right to present his defense, it doe

not cure the defect surrounding his arrest, or make admissible whatever

evidence gathered in the course of the confrontation and investigation. The

resulting unfairness has deprived him of the opportunity to prepare a

meaningful defense.



77

I agree that in terms of the provisions of the Rules of Court, the accused may

not challenge, on certiorari, a denial of a motion to acquit. But it seems to me

that the case, for all its Constitutional implications, should stand on its merits

and not on the errors of the counsel for the accused on his choice of judicial

remedies. Accordingly, I am for denying the Rules of their rigidity and for

deciding on the petition on Constitutional grounds.

I vote to grant the petition.

Gancayco, J., concur



78

G.R. No. 199877 August 13, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.

ARTURO LARA y ORBISTA, Accused-Appellant.

VILLARAMA, JR.,*

D E C I S I O N

REYES, J.:

This is an automatic appeal from the Decision1 dated July 28, 2011 of the Court

of Appeals (CA) in CA-G.R. CR HC No. 03685. The CA affirmed the

Decision2 dated October 1, 2008 of the Regional Trial Court (RTC), Pasig City,

Branch 268, finding Arturo Lara (Lara) guilty beyond reasonable doubt of

robbery with homicide.

On June 14, 2001, an Information3 charging Lara with robbery with homicide

was filed with the RTC:

On or about May 31, 2001, in Pasig City, and within the jurisdiction of thisHonorable Court, the accused, armed with a gun, conspiring and confederating

together with one unidentified person who is still at-large, and both of them

mutually helping and aiding one another, with intent to gain, and by means of

force, violence and intimidation, did then and there wilfully, unlawfully and

feloniously take, steal and divest from Joselito M. Bautista cash money

amounting to P 230,000.00 more or less and belonging to San Sebastian Allied

Services, Inc. represented by Enrique Sumulong; that on the occasion of said

robbery, the said accused, with intent to kill, did then and there wilfully,

unlawfully and feloniously attack, assault, and shoot said Joselito M. Bautista

with the said gun, thereby inflicting upon the latter mortal wounds which

directly caused his death.

Contrary to law.4

Following Lara’s plea of not guilty, trial ensued. The prosecution presented

three (3) witnesses: Enrique Sumulong (Sumulong), SPO1 Bernard Cruz (SPO1

Cruz) and PO3 Efren Calix (PO3 Calix).

Sumulong testified that: (a) he was an accounting staff of San Sebastian Allied

Services, Inc. (San Sebastian); (b) on May 31, 2001 and at around 9:00 in the

morning, he withdrew the amount of P 230,000.00 from the Metrobank-Mabini

Branch, Pasig City to defray the salaries of the employees of San Sebastian; (c)

in going to the bank, he rode a pick-up and was accompanied by Virgilio

Manacob (Manacob), Jeff Atie (Atie) and Joselito Bautista (Bautista); (d) he

placed the amount withdrawn in a black bag and immediately left the bank; (e)

at around 10:30 in the morning, while they were at the intersection of

Mercedes and Market Avenues, Pasig City, Lara suddenly appeared at the front

passenger side of the pick-up and pointed a gun at him stating, "Akin na ang

pera, iyong bag, nasaan?"; (f) Bautista, who was seated at the back, shouted,

"Wag mong ibigay"; (g) heeding Bautista’s advice, he threw the bag inBautista’s direction; (h) after getting hold of the bag, Bautista alighted from the

pick-up and ran; (i) seein Bautista, Lara ran after him while firing his gun; (j)

when he had the chance to get out of the pick-up, he ran towards Mercedes

Plaza and called up the office of San Sebastian to relay the incident; (k) when

he went back to where the pick-up was parked, he went to the rear portion of

the vehicle and saw blood on the ground; (l) he was informed by one bystander

that Bautista was shot and the bag was taken away from him; (m) when

barangay officials and the police arrived, he and his two (2) other companions

were brought to the police station for investigation; (n) on June 7, 2001, while

on his way to Barangay Maybunga, Pasig City, he saw Lara walking along Dr.

Pilapil Street, Barangay San Miguel, Pasig City; (o) he alerted the police and

Lara was thereafter arrested; and (p) at the police station, he, Atie and

Manacob identified Lara as the one who shot and robbed them of San

Sebastian’s money.5

SPO1 Cruz testified that: (a) he was assigned at the Follow-Up Unit of the Pas

City Police Station; (b) at around 7:55 in the evening of June 7, 2001, Sumulon

went to the police station and informed him that he saw Lara walking along D

Pilapil Street; (c) four (4) police officers and Sumulong went to Dr. Pilapil Stre

where they saw Lara, who Sumulong identified; (d) they then approached Lar

and invited him for questioning; (e) at the police station, Lara was placed in a

line-up where he was positively identified by Sumulong, Manacob and Atie; a

(f) after being identified, Lara was informed of his rights and subsequently

detained.6

PO3 Calix testified that: (a) he was a member of the Criminal Investigation Un

of the Pasig City Police Station; (b) on May 31, 2001, he was informed of a

robbery that took place at the corner of Mercedes and Market Avenues, Pasi

City; (c) he, together with three (3) other police officers, proceeded to the

crime scene; (d) upon arriving thereat, one of the police officers who were ab

to respond ahead of them, handed to him eleven (11) pieces of empty shells

and six (6) deformed slugs of a 9mm pistol; (e) as part of his investigation, he

interviewed Sumulong, Atie, Manacob at the police station; and (f) before

Bautista died, he was able to interview Bautista at the hospital where the latt

was brought after the incident.7

In his defense, Lara testified that: (a) he was a plumber who resided at Dr.

Pilapil Street, San Miguel, Pasig City; (b) on May 31, 2001, he was at his house

digging a sewer trench while his brother, Wilfredo, was constructing a comfo

room; (c) they were working from 8:00 in the morning until 3:00 in the

afternoon; (d) on June 7, 2001 and at around 7:00 in the evening, while he wa

at the house of one of his cousins, police officers arrived and asked him if he

was Arturo Lara; (e) after confirming that he was Arturo Lara, the police office

asked him to go with them to the Barangay Hall; (f) he voluntarily went with

them and while inside the patrol car, one of the policemen said, "You are luck

we were able to caught you in your house, if in another place we will kill you"

(sic); (g) he was brought to the police station and not the barangay hall as he

was earlier told where he was investigated for robbery with homicide; (h) wh

he told the police that he was at home when the subject incident took place,

the police challenged him to produce witnesses; (i) when his witnesses arrive

at the station, one of the police officers told them to come back the following

day; (j) while he was at the police line-up holding a name plate, a police office

told Sumulong and Atie, "Ituru nyo na yan at uuwi na tayo"; and (k) when his

witnesses arrived the following day, they were told that he will be subjected

an inquest.8

To corroborate his testimony, Lara presented one of his neighbors, Simplicia

Delos Reyes. She testified that on May 31, 2001, while she was manning her

store, she saw Lara working on a sewer trench from 9:00 in the morning to 5:

in the afternoon.9 Lara also presented his sister, Edjosa Manalo, who testified

that he was working on a sewer line the whole day of May 31, 2001.10

On October 1, 2008, the RTC convicted Lara of robbery with homicide in a

Decision,11

the dispositive portion of which states:

WHEREFORE, premises considered, this Court finds the accused ARTURO LAR

Y Orbista GUILTY beyond reasonable doubt of the crime of Robbery with

Homicide, defined and penalized under Article 294 (1) as amended by Republ

Act 7659, and is hereby sentenced to suffer the penalty of imprisonment of

reclusion perpetua, with all the accessory penalties prescribed by law.

Accused is further ordered to indemnify the heirs of the deceased the sum of

Php50,000.00 as civil indemnity and Php230,000.00 representing the money

carted by the said accused.

SO ORDERED.12

The RTC rejected Lara’s defense of alibi as follows:

The prosecution’s witness Enrique Sumulong positively identified accused

Arturo Lara as the person who carted away the payroll money of San Sebastia

Allied Services, Inc., on May 31, 2001 at around 10:30 o’clock in the morning

http://www.lawphil.net/judjuris/juri2012/aug2012/gr_199877_2012.html#fnt1


















































79

along the corner of Mercedez and Market Ave., Pasig City and the one who

shot Joselito Bautista which caused his instantaneous death on the same day.

As repeatedly held by the Supreme Court, "For alibi to prosper, an accused

must show he was at some other place for such a period of time that it was

impossible for him to have been at the crime scene at the time of the

commission of the crime" (People versus Bano, 419 SCRA 697). Considering the

proximity of the distance between the place of the incident and the residence

of the accused where he allegedly stayed the whole day of May 31, 2001, it is

not physically impossible for him to be at the crime scene within the same

barangay. The positive identification of the accused which were categorical and

consistent and without any showing of ill motive on the part of the

eyewitnesses, should prevail over the alibi and denial of the accused whose

testimony was not substantiated by clear and convincing evidence (People

versus Aves 420 SCRA 259).13

(Emphasis supplied)

On appeal, Lara pointed out several errors that supposedly attended his

conviction. First, that he was arrested without a warrant under circumstances

that do not justify a warrantless arrest rendered void all proceedings including

those that led to his conviction. Second, he was not assisted by counsel when

the police placed him in a line-up to be identified by the witnesses for the

prosecution in violation of Section 12, Article III of the Constitution. The police

line-up is part of custodial investigation and his right to counsel had already

attached. Third, the prosecution failed to prove his guilt beyond reasonable

doubt. Specifically, the prosecution failed to present a witness who actually

saw him commit the alleged acts. Sumulong merely presumed that he was theone who shot Bautista and who took the bag of money from him. The physical

description of Lara that Sumulong gave to the police was different from the one

he gave during the trial, indicating that he did not have a fair glimpse of the

perpetrator. Moreover, this gives rise to the possibility that it was his

unidentified companion who shot Bautista and took possession of the money.

Hence, it cannot be reasonably claimed that his conviction was attended with

moral certainty. Fourth, the trial court erred in discounting the testimony of his

witnesses. Without any showing that they were impelled by improper motives

in testifying in his favor, their testimonies should have been given the credence

they deserve. While his two (2) witnesses were his sister and neighbor, this

does not by itself suggest the existence of bias or impair their credibility.

The CA affirmed Lara’s conviction. That Lara was supposedly arrested without a

warrant may not serve as a ground to invalidate the proceedings leading to his

conviction considering its belated invocation. Any objections to the legality ofthe warrantless arrest should have been raised in a motion to quash duly filed

before the accused enters his plea; otherwise, it is deemed waived. Further,

that the accused was illegally arrested is not a ground to set aside conviction

duly arrived at and based on evidence that sufficiently establishes culpability:

Appellant’s avowal could hardly wash.

It is a shopworn doctrine that any objection involving a warrant of arrest or the

acquisition of jurisdiction over the person of an accused must be made before

he enters his plea, otherwise the objection is deemed waived. In voluntarily

submitting himself to the court by entering a plea, instead of filing a motion to

quash the information for lack of jurisdiction over his person, accused-

appellant is deemed to have waived his right to assail the legality of his arrest.

Applying the foregoing jurisprudential touchstone, appellant is estopped from

questioning the validity of his arrest since he never raised this issue beforearraignment or moved to quash the Information.

What is more, the illegal arrest of an accused is not sufficient cause for setting

aside a valid judgment rendered upon a sufficient complaint after trial free

from error. The warrantless arrest, even if illegal, cannot render void all other

proceedings including those leading to the conviction of the appellants and his

co-accused, nor can the state be deprived of its right to convict the guilty when

all the facts on record point to their culpability.14

(Citations omitted)

As to whether the identification of Lara during the police line-up is inadmissible

as his right to counsel was violated, the CA ruled that there was no legal

compulsion to afford him a counsel during a police line-up since the latter is

not part of custodial investigation.

Appellant’s assertion that he was under custodial investigation at the time he

was identified in a police line-up and therefore had the right to counsel does

not hold water. Ingrained in our jurisdiction is the rule that an accused is not

entitled to the assistance of counsel in a police line-up considering that such

usually not a part of custodial investigation. An exception to this rule is when

the accused had been the focus of police attention at the start of the

investigation. In the case at bench, appellant was identified in a police line-up

by prosecution witnesses from a group of persons gathered for the purpose.

However, there was no proof that appellant was interrogated at all or that a

statement or confession was extracted from him. A priori, We refuse to

hearken to appellant’s hollow cry that he was deprived of his constitutional

right to counsel given the hard fact that during the police line-up, the

accusatory process had not yet commenced.

Assuming ex hypothesi that appellant was subjected to interrogation sans

counsel during the police line-up, it does not in any way affect his culpability.

Any 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. Here,

appellant was convicted based on the testimony of a prosecution witness and

not on his alleged uncounseled confession or admission.15

(Citations omitted

The CA addressed Lara’s claim that the prosecution’s failure to present a

witness who actually saw him commit the crime charged as follows:

Third. Appellant takes umbrage at the alleged failure of the prosecution to

present an eyewitness to prove that he shot the victim and took the money.

Such posture is unpersuasive.

Contrary to appellant’s assertion, prosecution witness Sumulong actually saw

him shoot Bautista, the victim. Sumulong vividly recounted, viz:

"Q When you said that "tinutukan ka", aside from this act was the

any other words spoken by this person?

A There was, sir.

Q What did he say?

A "Nasaan ang bag ilabas mo yung pera", sir.

Q Where were you looking when this person approached you?

A I was looking at his face, sir.

Q And upon hearing those words, what did you do?

A I put out the money, sir, because I got afraid at that time.

Q Did you hand over the black bag containing the money to him?

A No, sir, because one of my companion(s) shouted not to give the

money or the bag so I immediately threw away the bag at the bac

seat, sir.

Q And how long approximately was that person standing by your c

window?

A Five (5) to ten (10) minutes, sir.

Q And after you have thrown the black bag containing money to th

back of the vehicle, what did that person do?















80

A I saw Joey alight(ed) from the vehicle carrying the bag and ran

away, sir, and I also saw somebody shoot a gun?

Q Who was firing the gun?

A The one who held-up us, sir.

Q By how, do you know his name?

A No, sir.

Q But if you can see him again, (were) you be able to recognize him?

A Yes, sir.

Q If he is in the courtroom, will you be able to recognize him?

A Yes, sir.

Q Please look around and please tell this Honorable Court whether

indeed the person you saw holding you up at that time is in court?

A Yes, sir.

Q Will you please stand up and tap his shoulder to identify him?

Interpreter:

The witness tap the shoulder of a person sitting on the first bench of

the courtroom wearing yellow t-shirt and black pants who when ask

identify himself as Arturo Lara (sic).

Q And when as you said Joey got the bag. Alighted from the vehicle

and ran away with it, what did the accused do? (sic)

A He shot Joey while running around our vehicle, sir.

Q Around how many shots according to your recollection were

fired?

A There were several shots, more or less nine (9) shots, sir.

x x x x x x"

"Q So, you did not personally notice what had transpired or

happened after you stepped down from the Nissan pick-up, that is

correct?

A There was, sir, my companion Joselito Bautista was shot.

Q When you heard the gunfire, you were already proceeding

towards that store to call your office by phone, that is correct?

A Not yet, sir, we were still inside the vehicle.

Q And was Joselito Bautista at the rear of the Nissan Sentra when

you heard this gunfire?

A Yes, sir.

Q And so he was at the back, so the shooter was also at the back o

the vehicle, that is correct?

A Yes, sir, he went towards the rear portion of the vehicle, he

followed Joselito Bautista and shot him.

Q So, to be clear, when Joselito Bautista ran to the rear, this allege

holdup(p)er followed him?

A Yes, sir.

Q And that was the time(,) you heard this gunfire? A Yes, sir.

Q So, you did not personally see who fired that firearm?

A Because at that time he was the one holding the gun, sir.

Q So, you are presuming that he was the one who fired the gun

because he was holding the gun, am I correct?

A Yes, sir."

x x x x

Under Section 4, Rule 133, of the Rules of Court, circumstantial evidence is

sufficient for conviction if the following requisites concur:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; an

(c) The combination of all the circumstances is such as to produce

conviction beyond reasonable doubt.

Here, the following circumstantial evidence are tellingly sufficient to prove ththe guilt of appellant is beyond reasonable doubt, viz:

1. While the vehicle was at the intersection of Mercedes and Market Avenue

Pasig City, appellant suddenly emerged and pointed a gun at prosecution

witness Sumulong, demanding from him to produce the bag containing the

money.

2. Prosecution witness Sumulong threw the bag to the victim who was then

seated at the backseat of the vehicle.

3. The victim alighted from vehicle carrying the bag.

4. Appellant chased and fired several shots at the victim.

5. The victim sustained several gunshot wounds.

6. The police officers recovered from the scene of the crime six deformed

empty shells.16

(Citations omitted and emphasis supplied)

Finally, the CA found that Lara’s alibi failed to convince. Specifically:

Deeply embedded in our jurisprudence is the rule that positive identification

the accused, where categorical and consistent, without any showing of ill

motive on the part of the eyewitness testifying, should prevail over the alibi

and denial of appellants, whose testimonies are not substantiated by clear an

convincing evidence.







81

All the more, to establish alibi the accused must prove (a) that he was present

at another place at the time of the perpetration of the crime, and (b) that it

was physically impossible for him to be at the scene of the crime. Physical

impossibility "refers to the distance between the place where the accused was

when the crime transpired and the place where it was committed, as well as

the facility of access between the two places. Appellant miserably failed to

prove the physical impossibility of his presence at the locus criminis at the time

of the perpetration of the felonious act. He himself admitted that his house

was just a stone’s throw (about three minutes away) from the crime

scene.17 (Citations omitted)

In a Resolution18

dated February 1, 2012, this Court accepted the appeal as the

penalty imposed was reclusion perpetua and the parties were afforded an

opportunity to file their supplemental briefs. Both parties waived their right to

do so, stating that they would adopt the allegations in their respective briefs

that they filed with the CA.

Issues

The present review of Lara’s conviction for robbery with homicide gives rise to

the following issues:

a. whether the identification made by Sumulong, Atie and Manacob

in the police line-up is inadmissible because Lara stood therein

without the assistance of counsel;

b. whether Lara’s supposedly illegal arrest may be raised for the first

time on appeal for the purpose of nullifying his conviction;

c. whether there is sufficient evidence to convict Lara; and

d. whether Lara’s alibi can be given credence so as to exonerate him

from the crime charged.

Our Ruling

This Court resolves to deny the appeal.

I

Jurisdiction over the person of the accused may be acquired through

compulsory process such as a warrant of arrest or through his voluntary

appearance, such as when he surrenders to the police or to the court .19

Any

objection to the arrest or acquisition of jurisdiction over the person of the

accused must be made before he enters his plea, otherwise the objection is

deemed waived. An accused submits to the jurisdiction of the trial court upon

entering a plea and participating actively in the trial and this precludes him

invoking any irregularities that may have attended his arrest.20

Furthermore, the illegal arrest of an accused is not a sufficient ground to

reverse and set aside a conviction that was arrived upon a complaint duly filed

and a trial conducted without error.21

As Section 9, Rule 117 of the Revised

Rules of Criminal Procedure provides:

Sec. 9. Failure to move to quash or to allege any ground therefor. — The failure

of the accused to assert any ground of a motion to quash before he pleads to

the complaint or information, either because he did not file a motion to quash

or failed to allege the same in said motion, shall be deemed a waiver of any

objections except those based on the grounds provided for in paragraphs (a),

(b), (g) and (i) of Section 3 of this Rule.

II

Contrary to Lara’s claim, that he was not provided with counsel when he was

placed in a police line-up did not invalidate the proceedings leading to his

conviction. That he stood at the police line-up without the assistance of

counsel did not render Sumulong’s identification of Lara inadmissible. The rig

to counsel is deemed to have arisen at the precise moment custodial

investigation begins and being made to stand in a police line-up is not the

starting point or a part of custodial investigation. As this Court previously rule

in People v. Amestuzo:22

The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the

1987 Constitution, or the so-called Miranda rights, may be invoked only by aperson while he is under custodial investigation. Custodial investigation starts

when the police investigation is no longer a general inquiry into an unsolved

crime but has begun to focus on a particular suspect taken into custody by th

police who starts the interrogation and propounds questions to the person to

elicit incriminating statements. Police line-up is not part of the custodial

investigation; hence, the right to counsel guaranteed by the Constitution

cannot yet be invoked at this stage. This was settled in the case of People vs.

Lamsing and in the more recent case of People vs. Salvatierra. The right to be

assisted by counsel attaches only during custodial investigation and cannot b

claimed by the accused during identification in a police line-up because it is n

part of the custodial investigation process. This is because during a police line

up, the process has not yet shifted from the investigatory to the accusatory a

it is usually the witness or the complainant who is interrogated and who gives

statement in the course of the line-up.23

(Citations omitted)

III

It is apparent from the assailed decision of the CA that the finding of guilt

against Lara is based on circumstantial evidence. The CA allegedly erred in th

wise considering that only direct and not circumstantial evidence can overcom

the presumption of innocence.

However, well-settled is the rule that direct evidence of the commission of th

crime is not the only matrix wherefrom a trial court may draw its conclusion

and finding of guilt. Even in the absence of direct evidence, conviction can be

had if the established circumstances constitute an unbroken chain, consisten

with each other and to the hypothesis that the accused is guilty, to the

exclusion of all other hypothesis that he is not.24

Under Section 4, Rule 133 of the Revised Rules on Criminal Procedure,circumstantial evidence sufficed to convict upon the concurrence of the

following requisites: (a) there is more than one circumstance; (b) the facts fro

which the inferences are derived are proven; and (c) the combination of all th

circumstances is such as to produce a conviction beyond reasonable doubt.

It is not only by direct evidence that an accused may be convicted of the crim

for which he is charged. Resort to circumstantial evidence is essential since to

insist on direct testimony would, in many cases, result in setting felons free a

denying proper protection to the community.25

As the CA correctly ruled, the following circumstances established by the

evidence for the prosecution strongly indicate Lara’s guilt: (a) while the vehic

Sumulong, Atie, Manacob and Bautista were riding was at the intersection of

Mercedes and Market Avenues, he appeared at the front passenger side

thereof armed with a gun; (b) while pointing the gun at Sumulong who was at

the front passenger seat, Lara demanded that Sumulong give him the bag

containing the money; (c) instead of giving the bag to Lara, Sumulong gave it

Bautista who was seated at the back of the pick-up; (d) when Bautista got hol

of the bag, he alighted and ran towards the back of the pick-up; (e) Lara ran

after Bautista and while doing so, fired his gun at Bautista’s direction; (f)

Bautista sustained several gunshot wounds; and (g) Bautista’s blood was on t

crime scene and empty shells were recovered therefrom.

Indeed, in cases of robbery with homicide, the taking of personal property w

intent to gain must itself be established beyond reasonable doubt. Conclusive

evidence proving the physical act of asportation by the accused must be

presented by the prosecution. It must be shown that the original criminal

design of the culprit was robbery and the homicide was perpetrated with a

view to the consummation of the robbery by reason or on the occasion of the







































82

robbery.26

The mere presence of the accused at the crime scene is not enough

to implicate him. It is essential to prove the intent to rob and the use of

violence was necessary to realize such intent.

In this case, Lara’s intent to gain is proven by Sumulong’s positive narration

that it was Lara who pointed the gun at him and demanded that the bag

containing the money be turned over to him. That Lara resorted to violence in

order to actualize his intent to gain is proven by Sumulong’s testimony that he

saw Lara fire the gun at the direction of Bautista, who was running away fromthe pick-up in order to prevent Lara from taking possession of the money.

Notably, the incident took place in broad daylight and in the middle of a street.

Thus, where considerations of visibility are favorable and the witness does not

appear to be biased against the accused, his or her assertions as to the identity

of the malefactor should be normally accepted.27

Lara did not allege, much less, convincingly demonstrate that Sumulong was

impelled by improper or malicious motives to impute upon him, however

perjurious, such a serious charge. Thus, his testimony, which the trial court

found to be forthright and credible, is worthy of full faith and credit and should

not be disturbed. If an accused had nothing to do with the crime, it is against

the natural order of events and of human nature and against the presumption

of good faith that a prosecution witness would falsely testify against the

former.28

IV

In view of Sumulong’s positive identification of Lara, the CA was correct in

denying Lara’s alibi outright. It is well-settled that positive identification

prevails over alibi, which is inherently a weak defense. Such is the rule, for as a

defense, alibi is easy to concoct, and difficult to disapprove.29

Moreover, in order for the defense of alibi to prosper, it is not enough to prove

that the accused was somewhere else when the offense was committed, but it

must likewise be demonstrated that he was so far away that it was not possible

for him to have been physically present at the place of the crime or its

immediate vicinity at the time of its commission. Due to its doubtful nature,

alibi must be supported by clear and convincing proof.

In this case, the proximity of Lara’s house at t he scene of the crime wholly

negates his alibi. Assuming as true Lara’s claim and that of his witnesses that he

was digging a sewer trench on the day of the incident, it is possible that his

witnesses may not have noticed him leaving and returning given that the

distance between his house and the place where the subject incident took

place can be negotiated, even by walking, in just a matter of minutes. Simply

put, Lara and his witnesses failed to prove that it is well-nigh impossible for him

to be at the scene of the crime.

In fine, the assailed decision of the CA is affirmed in all respects.

WHEREFORE, premises considered, the Decision dated July 28, 2011 of the

Court of Appeals in CA-G.R. CR HC No. 03685 is hereby AFFIRMED.

SO ORDERED.



















83

G.R. No. 197550 September 25, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.

ARTURO ENRIQUEZ y DE LOS REYES, Accused-Appellant.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This is an appeal1 of the February 11, 2011 Decision

2 of the Court of Appeals, in

CA-G.R. CR.-H.C. No. 03430, which affirmed the Regional Trial Court's (RTC)

February 28, 2008 Decision3 in Criminal Case Nos. DC03-209 and DC 03-210,

wherein accused-appellant ARTURO ENRIQUEZ y DE LOS REYES (Enriquez) was

found guilty beyond reasonable doubt of violating Sections 5 and 11, Article II

of Republic Act No. 9165.

In two separate lnformations4 f iled before Branch 57 of the RTC of Angeles City,

Enriquez was charged with violating Sections 5 and 11, Article II of Republic Act

No. 9165 or the "Comprehensive Dangerous Drugs Act of 2002." The pertinent

portions of the Informations, both dated June 4, 2003, are hereby quoted as

follows:

Criminal Case No. DC 03-209

That on or about the 3rd day of June, 2003, in Brgy. Manibaug Libutad,

municipality of Porac, province of Pampanga, Philippines, and within the

jurisdiction of this Honorable Court, the above-named accused, ARTURO

ENRIQUEZ y DELOS REYES, without any authority of law, did then and there

willfully, unlawfully and feloniously had in his possession, custody and control

forty[-]five (45) small size heat-sealed transparent plastic sachets containing

Methylamphetamine Hydrochloride (shabu) weighing TWO GRAMS AND SIX

THOUSAND ONE TEN THOUSANDTHS (2.6001g) of a gram and one (1) pc. big

size heat-sealed transparent plastic sachet containing Methylamphetamine

Hydrochloride(shabu) weighing ONE THOUSAND TWO HUNDRED TWELVE

TENTHOUSANDTHS (0.1212g) of a gram, a dangerous drug.5

Criminal Case No. DC 03-210

That on or about the 3rd day of June, 2003, in Brgy. Manibaug Libutad,

municipality of Porac, province of Pampanga, Philippines and within the

jurisdiction of this Honorable Court, the above-named accused, ARTURO

ENRIQUEZ y DELOS REYES, without having been lawfully authorized, did then

and there willfully, unlawfully and feloniously, deliver and/or sell one (1) small

size heat sealed transparent plastic sachet containing Methylamphetamine

Hydrochloride (shabu) with an actual weight of FOUR HUNDRED TWENTY-TWO

TEN THOUSANDTH(0.0422g) of a gram, a dangerous drug.6

Enriquez pleaded not guilty to both charges upon his arraignment7 on June 19,

2003.

Trial on the merits ensued after the termination of the pre-trial conference on

September 25, 2003.8

As culled from the records and transcript of stenographic notes, the

contradictory versions of the prosecution and defense are as follows:

Prosecution’s Version

Sometime in May 2003, Senior Police Officer (SPO) 2 Edilberto David, SPO2

Ernesto Divina, and SPO1 Saturnino Garung received reports from the barangay

office and other concerned citizens of drug-dealing activities in the locality of

Porac, Pampanga. They immediately conducted a casing and surveillance

operation to verify the reports. About four operations were carried out, on a

weekly basis, which confirmed that Enriquez was indeed dealing drugs among

the truck drivers and helpers within the vicinity. After confirming the reports,

SPO2 David, together with one civilian asset, conducted a test-buy on June 2,

2003.9 During the test-buy, SPO2 David’s asset was able to buy P200.00 wort

of shabu, which he confirmed to be so by burning it, contrary to standard

police procedure.10

After the test-buy, SPO2 David organized a team, composed of himself, SPO2

Divina, and SPO1 Garung, to conduct a buy-bust operation.11

On June 3, 2003

after SPO2 Divina coordinated with the Philippine Drug Enforcement Agency(PDEA) for their on-going narcotics operation,

12 their Chief of Police Ricardo

Erese briefed the team at Kababayan Center No. 2, at Barangay Sta. Cruz,

Porac, Pampanga. At the briefing, SPO2 David was designated as the poseur-

buyer, with the other two police officers as back-ups. To purchase the shabu,

Chief of Police Erese gave SPO2 David aP100-peso bill and five P20-peso bills,

which SPO2 David marked by placing a small bar on the lower right corner of

the bills. The team thereafter proceeded to Brgy. Manibaug, Libutad in Porac

Pampanga. Upon arriving at the target area at around 11:00 a.m., SPO2 David

approached Enriquez, whom they spotted sitting in a sari-sari store, while SP

Divinaand SPO1 Garung hid behind a dump truck parked across the store.

SPO2David called the attention of Enriquez by saying "dalawang (2)

piso"13

while handing him the P200.00. Without saying anything, Enriquez too

the money and went to the back of the store. After one to two minutes,

Enriquez emerged and handed SPO2 David a sachet of shabu. This prompted

SPO2David to put his hand at the back of his head, to signal his teammates th

the sale had been consummated. Upon the execution of the pre-arrangedsignal, SPO2 Divina and SPO1 Garung approached the site of engagement,

introduced themselves as police officers to Enriquez, and thereafter conduct

a body search on him, which resulted to the discovery of a plastic game card

containing one big and 45 small plastic sachets of white crystalline

substance.14

SPO2 David prepared the Confiscation Receipt for the above-

seized items, then subsequently brought Enriquez to the Porac Police Station

wherein the team prepared the papers necessary in filing a case against

Enriquez.15

As per Chemistry Report No. D-219-2003,16

prepared by Police Inspector and

Forensic Chemical Officer Divina Mallare Dizon (P/Insp. Dizon), upon the

request for laboratory examination17

submitted by Chief of Police Erese, the

plastic sachets confiscated from Enriquez tested positive for

methylamphetamine hydrochloride.

Defense’s Version

The defense’s version of the events, as quoted from Enriquez’s own brief, are

as follows:

In truth, Enriquez was alone, eating in an eatery in Manibaug, Porac,

Pampanga, when three (3) men, all in civilian clothes, alighted from an owne

type jeep and approached him. One of the men, SPO2 David, then poked a gu

at him. The former asked Enriquez if he knew a certain truck driver who is

suspected of selling shabu. When he denied knowledge thereof, he was

immediately handcuffed and was brought to the police station for further

investigation. He was detained and was told that he is being suspected of

selling shabu.

Nora Pangilinan, a 37-year old helper of the sari-sari store, corroborated

*Enriquez+’s testimony.1âwphi1 She saw how the apprehending team rudely

approached and arrested [Enriquez].18

(Citations omitted.)

On February 28, 2008, the RTC convicted Enriquez in its Decision, the

dispositive portion of which reads:

WHEREFORE, the prosecution having proven the guilt of the accused beyond

reasonable doubt in the two (2) cases, the Court finds accused ARTURO

ENRIQUEZ Y DE LOS REYES GUILTY of the offense as charged and hereby

sentences him to suffer the penalty of LIFEIMPRISONMENT and a fine of

Php500,000.00, in Criminal Case No. DC 03-210 for violation of Section 5, Art

of R.A. 9165. Accused Enriquez is also sentenced to suffer the penalty of

imprisonment of TWELVE YEARS (12) AND ONE (1) DAY, as minimum, to

http://www.lawphil.net/judjuris/juri2013/sep2013/gr_197550_2013.html#fnt1









































































84

FOURTEEN (14) YEARS AND EIGHT (8) MONTHS, as maximum, of Reclusion

Temporal in Criminal Case No. DC 03-209 for violation of Section 11 of R.A.

9165 and a fine of Php300,000.00.19

Aggrieved, Enriquez appealed20

to the Court of Appeals, which, on February 11,

2011, affirmed the decision of the RTC.21

Issues

Enriquez is now before this Court, assigning22

the same errors he presented

before the Court of Appeals, to wit:

I

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THEACCUSED-APPELLANT

DESPITE THE IRREGULARITY OFTHE BUY-BUST OPERATION.

II


DESPITE THE PROSECUTION’SFAILURE TO PROVE WITH MORAL CERTAINTY

THEIDENTITY OF THE CORPUS DELICTI.

III


DESPITE THE ARRESTING OFFICERS’NON-COMPLIANCE WITH THE

REQUIREMENTS FOR THEPROPER CUSTODY OF SEIZED DANGEROUS DRUGS

UNDERREPUBLIC ACT NO. 9165.23

Enriquez questions the fact that despite a month-long surveillance and casing

operation against him, the police operatives still opted to conduct a buy-bust

operation instead of securing a warrant for his arrest.24

Moreover, Enriquez

points out, the police officer, to test the substance they allegedly recovered

from him during their test-buy operation, burned such substance instead of

going through the proper testing procedures.25

Aside from the foregoing procedural infractions, Enriquez finds it irregular that

the police officers commuted to the target area instead of using their precinct’s

service mobile. Enriquez adds: "The lack of a service vehicle, therefore, is an

irregularity that is too uncommon and virtually affects the preservation of the

seized pieces of evidence."26

Enriquez also claims that the prosecution was not able to prove with moral

certainty the identity of the corpus delicti for failure of the police officers to

comply with Section 21(a) of Republic Act No. 9165, on the custody and

disposition of confiscated or seized dangerous drugs. He avers that there was

neither physical inventory nor a photograph of the seized items. Moreover,

Enriquez says, the markings on the confiscated items were not immediately

made upon its seizure, at the place of the incident, nor were there any

indication in the records that it was made in his presence. Enriquez points out

that while "non-compliance x x x with Section 21 is not fatal, as police lapses,

may at times occur, these errors, however, must be supported with justifiable

grounds and the integrity and the evidentiary value of the seized items must be

preserved."27

Ruling of the Court

This Court has painstakingly reviewed the records of this case and after a

thorough deliberation, resolves to acquit Enriquez for the prosecution’s failure

to prove his guilt beyond reasonable doubt. This Court finds that the

prosecution was not able to establish with moral certainty that the integrity

and evidentiary value of the items confiscated from Enriquez were preserved

such that they could be used as basis for Enriquez’s conviction.

The Constitution28

demands that an accused in a criminal case be presumed

innocent until otherwise proven beyond reasonable doubt.

Likewise, Section 2, Rule 133 of the Rules of Court requires proof beyond

reasonable doubt to justify a conviction; anything less than that entitles the

accused to an acquittal.

Enriquez was charged and convicted for the sale and possession of

methylamphetamine hydrochloride, more popularly known as shabu, inviolation of Sections 5 and 11, Article II of Republic Act No. 9165, to wit:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution

and Transportation of Dangerous Drugs and/or Controlled Precursors and

Essential Chemicals. - The penalty of life imprisonment to death and a fine

ranging from Five hundred thousand pesos (P500,000.00)to Ten million peso

(P10,000,000.00) shall be imposed upon any person, who, unless authorized

law, shall sell, trade, administer, dispense, deliver, give away to another,

distribute, dispatch in transit or transport any dangerous drug, including any

and all species of opium poppy regardless of the quantity and purity involved

or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day t

twenty (20) years and a fine ranging from One hundred thousand pesos

(P100,000.00) to Five hundred thousand pesos(P500,000.00) shall be impose

upon any person, who, unless authorized by law, shall sell, trade, administer,

dispense, deliver, give away to another, distribute, dispatch in transit or

transport any controlled precursor and essential chemical, or shall act as a

broker in such transactions.

x x x x

Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonmen

to death and a fine ranging from Five hundred thousand pesos (P500,000.00)

Ten million pesos (P10,000,000.00) shall be imposed upon any person, who,

unless authorized by law, shall possess any dangerous drug in the following

quantities, regardless of the degree of purity thereof:

(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;

(3) 10 grams or more of heroin;(4) 10 grams or more of cocaine or

cocaine hydrochloride;

(5) 50 grams or more of methamphetamine hydrochloride or "

shabu;"

(6) 10 grams or more of marijuana resin or marijuana resin oil;

(7) 500 grams or more of marijuana; and

(8) 10 grams or more of other dangerous drugs such as, but not

limited to, methylenedioxy methamphetamine (MDMA) or

"ecstasy," paramethoxyamphetamine (PMA),

trimethoxyamphetamine (TMA), lysergic acid diethylamide (LSD),

gamma hydroxybutyrate (GHB),and those similarly designed or

newly introduced drugs and their derivatives, without having any

therapeutic value or if the quantity possessed is far beyond

therapeutic requirements, as determined and promulgated by the

Board in accordance to Section 93, Article XI of this Act.

Otherwise, if the quantity involved is less than the foregoing quantities, the

penalties shall be graduated as follows:











































85

(1) Life imprisonment and a fine ranging from Four hundred

thousand pesos (P400,000.00) to Five hundred thousand pesos

(P500,000.00), if the quantity of methamphetamine hydrochloride

or "shabu" is ten(10) grams or more but less than fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life

imprisonment and a fine ranging from Four hundred thousand pesos

(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the

quantities of dangerous drugs are five (5) grams or more but lessthan ten (10) grams of opium, morphine, heroin, cocaine or cocaine

hydrochloride, marijuana resin or marijuana resin oil,

methamphetamine hydrochloride or "shabu," or other dangerous

drugs such as, but not limited to, MDMA or "ecstasy," PMA,

TMA,LSD, GHB, and those similarly designed or newly introduced

drugs and their derivatives, without having any therapeutic value or

if the quantity possessed is far beyond therapeutic requirements; or

three hundred (300) grams or more but less than five hundred (500)

grams of marijuana; and

(3) Imprisonment of twelve (12) years and one (1) day to twenty

(20) years and a fine ranging from Three hundred thousand pesos

(P300,000.00) to Four hundred thousand pesos (P400,000.00), if the

quantities of dangerous drugs are less than five (5) grams of opium,

morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin

or marijuana resin oil, methamphetamine hydrochloride or "shabu,"

or other dangerous drugs such as, but not limited to, MDMA or

"ecstasy," PMA, TMA, LSD, GHB, and those similarly designed or

newly introduced drugs and their derivatives, without having any

therapeutic value or if the quantity possessed is far beyond

therapeutic requirements; or less than three hundred (300) grams

of marijuana.

When prosecuting the sale of a dangerous drug, the following elements must

be proven: (1) the identities of the buyer and seller, object, and consideration;

and (2) the delivery of the thing sold and the payment therefor .29

In cases of

illegal possession of dangerous drugs, the essential requisites that must be

established are: (1) the accused was in possession of the dangerous drug; (2)

such possession is not authorized by law; and (3) the accused freely and

consciously possessed the dangerous drug.30

As the dangerous drug itself constitutes the very corpus delicti of both

offenses, its identity and integrity must definitely be shown to have been

preserved.31

"This means that on top of the elements of possession or illegal

sale, the fact that the substance [possessed or illegally sold], in the first

instance, the very substance adduced in court must likewise be established

with the same exacting degree of certitude as that required sustaining a

conviction."32

Thus, the prosecution must be able to account for each link in the

chain of custody over the dangerous drug, from the moment it was seized from

the accused up to the time it was presented in court as proof of the corpus

delicti.33

The chain of custody requirement "ensures that unnecessary doubts

respecting the identity of the evidence are minimized if not altogether

removed."34

Paragraph 1, Section 21, Article II of Republic Act No. 9165 outlines the

procedure on the chain of custody of confiscated, seized, or surrendered

dangerous drugs, viz:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and

Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.

– The PDEA shall take charge and have custody of all dangerous drugs, plant

sources of dangerous drugs, controlled precursors and essential chemicals, as

well as instruments/paraphernalia and/or laboratory equipment so

confiscated, seized and/or surrendered, for proper disposition in the following

manner:

(1) The apprehending team having initial custody and control of the drugs shall,

immediately after seizure and confiscation, physically inventory and

photograph the same in the presence of the accused or the person/s from

whom such items were confiscated and/or seized, or his/her representative o

counsel, a representative from the media and the Department of Justice (DOJ

and any elected public official who shall be required to sign the copies of the

inventory and be given a copy thereof.

Its Implementing Rules and Regulations state:

SECTION 21. Custody and Disposition of Confiscated, Seized and/orSurrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled

Precursors and Essential Chemicals, Instruments/Paraphernalia and/or

Laboratory Equipment. — The PDEA shall take charge and have custody of all

dangerous drugs, plant sources of dangerous drugs, controlled precursors an

essential chemicals, as well as instruments/paraphernalia and/or laboratory

equipment so confiscated, seized and/or surrendered, for proper disposition

the following manner:

(a) The apprehending officer/team having initial custody and control of the

drugs shall, immediately after seizure and confiscation, physically inventory a

photograph the same in the presence of the accused or the person/s from

whom such items were confiscated and/or seized, or his/her representative o

counsel, a representative from the media and the Department of Justice (DOJ

and any elected public official who shall be required to sign the copies of the

inventory and be given a copy thereof: Provided, that the physical inventoryand photograph shall be conducted at the place where the search warrant is

served; or at the nearest police station or at the nearest office of the

apprehending officer/team, whichever is practicable, in case of warrantless

seizures; Provided, further, that non-compliance with these requirements

under justifiable grounds, as long as the integrity and the evidentiary value o

the seized items are properly preserved by the apprehending officer/team,

shall not render void and invalid such seizures of and custody over said items

Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of

2002,35

which implements the Comprehensive Dangerous Drugs Act of 2002,

defines "chain of custody" as follows:

Chain of Custody means the duly recorded authorized movements and custo

of seized drugs or controlled chemicals or plant sources of dangerous drugs o

laboratory equipment of each stage, from the time of seizure/confiscation toreceipt in the forensic laboratory to safekeeping to presentation in court for

destruction. Such record of movements and custody of seized item shall

include the identity and signature of the person who held temporary custody

the seized item, the date and time when such transfer of custody were made

the course of safekeeping and use in court as evidence, and the final

disposition.

Describing the mechanics of the custodial chain requirement, this Court, in

People v. Cervantes,36

said:

As a mode of authenticating evidence, the chain of custody rule requires that

the admission of an exhibit be preceded by evidence sufficient to support a

finding that the matter in question is what the proponent claims it to be. In

context, this would ideally include testimony about every link in the chain, fro

the seizure of the prohibited drug up to the time it is offered into evidence, in

such a way that everyone who touched the exhibit would describe how and

from whom it was received, where it was and what happened to it while in th

witness’ possession, the condition in which it was received, and the condition

in which it was delivered to the next link in the chain. x x x. (Citation omitted

Thus, the following are the links that must be established in the chain of

custody in a buy-bust situation:

First, the seizure and marking, if practicable, of the illegal drug recovered from

the accused by the apprehending officer;

Second, the turnover of the illegal drug seized by the apprehending officer to

the investigating officer;



































86

Third, the turnover by the investigating officer of the illegal drug to the forensic

chemist for laboratory examination; and

Fourth, the turnover and submission of the marked illegal drug seized from the

forensic chemist to the court.37

While non-compliance with the prescribed procedural requirements will not

automatically render the seizure and custody of the items void and invalid, this

is true only when "(i) there is a justifiable ground for such non-compliance, and(ii) the integrity and evidentiary value of the seized items are properly

preserved."38

Thus, any divergence from the prescribed procedure must be

justified and should not affect the integrity and evidentiary value of the

confiscated contraband. Absent any of the said conditions, the non-compliance

is an irregularity, a red flag, that casts reasonable doubt on the identity of the

corpus delicti.

In the case at bar, not only was there no justifiable ground offered for the non-

compliance with the chain of custody requirement, there was an apparent

failure to properly preserve the integrity and evidentiary value of the seized

items to ensure the identity of the corpus delicti from the time of seizure to the

time of presentation in court.39

In other words, the prosecution’s evidence

failed to establish the chain that would have shown that the sachets of shabu

presented in court were the very same items seized from Enriquez.

The first crucial link in the chain of custody starts with the seizure from

Enriquez of the dangerous drugs and its subsequent marking. Under the law,

such marking should have been done immediately after confiscation and in the

presence of the accused or his representative. While it is true that the items

presented in court bore the initials of SPO2 David, who was also the poseur-

buyer and primary apprehending officer, nowhere in the documentary and

testimonial evidence of the prosecution can it be found when these items were

actually marked and if they were marked in the presence of Enriquez or at least

his representative. Emphasizing the importance of this first link, this Court in

People v. Zakaria,40

pronounced:

Crucial in proving the chain of custody is the marking of the seized dangerous

drugs or other related items immediately after they are seized from the

accused, for the marking upon seizure is the starting point in the custodial link

that succeeding handlers of the evidence will use as reference point. Moreover,the value of marking of the evidence is to separate the marked evidence from

the corpus of all other similar or related evidence from the time of seizure from

the accused until disposition at the end of criminal proceedings, obviating

switching, "planting" or contamination of evidence. A failure to mark at the

time of taking of initial custody imperils the integrity of the chain of custody

that the law requires. (Citation omitted.)

The second link in the chain of custody is the turnover of the illegal drug by the

apprehending officer to the investigating officer. Both SPO2David and SPO2

Divina testified that after the buy-bust operation, they brought Enriquez and

the seized items to the police station. However, they both failed to identify the

person to whom they turned over the seized items. Records show that the

request for laboratory examination was prepared by Chief of Police Erese, and

yet there is no evidence to show that he was the person who received the

seized items from the apprehending officers. There is therefore a crucialmissing link, i.e., what happened to the seized items after they left the hands of

SPO2 David and SPO2 Divina and before they came to the hands of Chief of

Police Erese.

As for the third and the last links, although records show that Chief of Police

Erese signed the request for laboratory examination, he was not presented in

court to testify as such. The testimony of Chief of Police Erese is indispensable

because he could have provided the critical link between the testimony of

SPO2 David, and the tenor of the testimony of P/Insp. Dizon, which the parties

have stipulated on. The unaccounted for whereabouts of the seized items from

the time they were brought to the police station to the time they were

submitted to P/Insp. Dizon for examination constitutes a clear break in the

chain of custody. Moreover, no one testified as to how the confiscated items

were handled and cared for after the laboratory examination.41

Overall, the prosecution failed to observe the requirement that the testimon

of all persons who handled the specimen are important to establish the chain

of custody.42

Of all the individuals who came into direct contact with or had

physical possession of the shabu allegedly seized from Enriquez, only SPO2

David testified for the specific purpose of identifying the evidence.43

However, his testimony miserably failed to demonstrate an unbroken chain a

it ended with his identification of the money and seized items he marked and

documents he signed. In effect, the custodial link ended with SPO2 David whhe testified that he brought the seized items, together with Enriquez, to the

police station.

Under the above premises, it is clear that there was a break in the chain of

custody of the seized substances. The failure of the prosecution to establish t

evidence's chain of custody is fatal to its case as we can no longer consider or

even safely assume that the integrity and evidentiary value of the confiscated

dangerous drug were properly preserved.44

WHEREFORE, the Decision of the Court of Appeals in CA-G.R.CR.-H.C. No. 034

dated February 11, 2011 is REVERSED and SETASIDE. Accused-Appellant

ARTURO ENRIQUEZ y DELOS REYES is hereby ACQUITTED in Criminal Case No

DC 03-209 and DC 03-210 for the failure of the prosecution to prove his guilt

beyond reasonable doubt. He is ordered immediately RELEASED from

detention, unless he is confined for another lawful cause.

The Director of the Bureau of Corrections is DIRECTED To implement this

Decision and to report to this Court on the action taken within five (5) days

from receipt of this Decision.

No pronouncement as to costs.

SO ORDERED.



































87

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAGDANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALANJAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETHPROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO,ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWINTULALIAN and REBECCA TULALIANpetitioners,

vs.MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL.GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M.LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT.PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGTBIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital JudicialRegion, Branch XCV (95), Quezon City,respondents.

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by

this Court. It poses the question whether the suspension of the privilege of the

writ of habeas corpus bars a civil action for damages for illegal searchesconducted by military personnel and other violations of rights and liberties

guaranteed under the Constitution. If such action for damages may be

maintained, who can be held liable for such violations: only the military

personnel directly involved and/or their superiors as well.

This case stems from alleged illegal searches and seizures and other violations

of the rights and liberties of plaintiffs by various intelligence units of the Armed

Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by

General Fabian Ver "to conduct pre-emptive strikes against known communist-

terrorist (CT) underground houses in view of increasing reports about CT plans

to sow disturbances in Metro Manila," Plaintiffs allege, among others, that

complying with said order, elements of the TFM raided several places,

employing in most cases defectively issued judicial search warrants; that during

these raids, certain members of the raiding party confiscated a number of

purely personal items belonging to plaintiffs; that plaintiffs were arrestedwithout proper warrants issued by the courts; that for some period after their

arrest, they were denied visits of relatives and lawyers; that plaintiffs were

interrogated in violation of their rights to silence and counsel; that military men

who interrogated them employed threats, tortures and other forms of violence

on them in order to obtain incriminatory information or confessions and in

order to punish them; that all violations of plaintiffs constitutional rights were

part of a concerted and deliberate plan to forcibly extract information and

incriminatory statements from plaintiffs and to terrorize, harass and punish

them, said plans being previously known to and sanctioned by defendants.

Plaintiffs sought actual/compensatory damages amounting to P39,030.00;

moral damages in the amount of at least P150,000.00 each or a total of

P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each

or a total of P3,000,000.00; and attorney's fees amounting to not less than

P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then

Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a

judicial inquiry into the circumstances of their detention in the guise of a

damage suit because, as to them, the privilege of the writ of habeas corpus is

suspended; (2) assuming that the courts can entertain the present action,

defendants are immune from liability for acts done in the performance of their

official duties; and (3) the complaint states no cause of action against the

defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco

Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and

Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario

Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph

Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and

Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated

Reply was filed by defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region

Branch 95, Judge Willelmo C. Fortun, Presiding,1 issued a resolution granting

the motion to dismiss. I sustained, lock, stock and barrel, the defendants'

contention (1) the plaintiffs may not cause a judicial inquiry into the

circumstances of their detention in the guise of a damage suit because, as to

them, the privilege of the writ of habeas corpus is suspended; (2) that assum

that the court can entertain the present action, defendants are immune from

liability for acts done in the performance of their official duties; and (3) that t

complaint states no cause of action against defendants, since there is no

allegation that the defendants named in the complaint confiscated plaintiffs'

purely personal properties in violation of their constitutional rights, and with

the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido

Balabo committed acts of torture and maltreatment, or that the defendants

had the duty to exercise direct supervision and control of their subordinates

that they had vicarious liability as employers under Article 2180 of the Civil

Code. The lower court stated, "After a careful study of defendants' argument

the court finds the same to be meritorious and must, therefore, be granted. O

the other hand, plaintiffs' arguments in their opposition are lacking in merit."

A motion to set aside the order dismissing the complaint and a supplemental

motion for reconsideration was filed by the plaintiffs on November 18, 1983,

and November 24, 1983, respectively. On December 9, 1983, the defendants

filed a comment on the aforesaid motion of plaintiffs, furnishing a copy there

to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio

Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. RosalesPedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene

Saguisag, Ramon Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting

himself from further proceeding in the case and leaving the resolution of the

motion to set aside the order of dismissal to Judge Lising, "to preclude any

suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motio

with the cold neutrality of an impartial judge and to put an end to plaintiffs

assertion that the undersigned has no authority or jurisdiction to resolve said

pending motion." This order prompted plaintiffs to reesolve an amplificatory

motion for reconsideration signed in the name of the Free Legal Assistance

Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo,

Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the

defendants filed a comment on said amplificatory motion for reconsideration

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presidin

without acting on the motion to set aside order of November 8, 1983, issued

order, as follows:

It appearing from the records that, indeed, the followin

plaintiffs, Rogelio Aberca, Danilo de la Fuente and Mar

Palo, represented by counsel, Atty. Jose W. Diokno, Ala

Jasminez represented by counsel, Atty. Augusta Sanche

Spouses Alex Marcelino and Elizabeth Protacio-

Marcelino, represented by counsel, Atty. Procopio

Beltran, Alfredo Mansos represented by counsel, Atty.

Rene Sarmiento, and Rolando Salutin, represented by

counsel, Atty. Efren Mercado, failed to file a motion to

reconsider the Order of November 8, 1983, dismissing

the complaint, nor interposed an appeal therefromwithin the reglementary period, as prayed for by the

defendants, said Order is now final against said plaintif

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for

reconsideration on May 28,1984, alleging that it was not true that plaintiffs

Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex

Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin

failed to file a motion to reconsider the order of November 8, 1983 dismissing

the complaint, within the reglementary period. Plaintiffs claimed that the

motion to set aside the order of November 8, 1983 and the amplificatory

motion for reconsideration was filed for all the plaintiffs, although signed by

only some of the lawyers.



88

In its resolution of September 21, 1984, the respondent court dealt with both

motions (1) to reconsider its order of May 11, 1984 declaring that with respect

to certain plaintiffs, the resolution of November 8, 1983 had already become

final, and (2) to set aside its resolution of November 8, 1983 granting the

defendants' motion to dismiss. In the dispositive portion of the order of

September 21, 1984, the respondent court resolved:

(1) That the motion to set aside the order of finality,

dated May 11, 1984, of the Resolution of dismissal of thecomplaint of plaintiffs Rogelio Aberca, Danilo de la

Fuente, Marco Palo, Alan Jasminez Alex Marcelino,

Elizabeth Protacio-Marcelino, Alfredo Mansos and

Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following

defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of

dismissal of the present action or complaint, dated

November 8, 1983, is also denied but in so far as it

affects and refers to defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of

dismissal dated November 3, 1983 is granted and the

Resolution of dismissal is, in this respect, reconsidered

and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985

seeking to annul and set aside the respondent court's resolution of November

8, 1983, its order of May 11, 1984, and its resolution dated September 21,

1984. Respondents were required to comment on the petition, which it did on

November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which

provides:

ART. 32. Any public officer or employee, or any private

individual who directly or indirectly obstructs, defeats,

violates or in any manner impedes or impairs any of the

following rights and liberties of another person shall be

liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a

periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without du

process

(7) of law;

(8) The right to a just compensation when private

property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house,

papers, and effects against unreasonable searches and

seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence

(13) The right to become a member of associations or

societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to

petition the Government for redress of grievances;

(15) The right to be free from involuntary servitude in

any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself an

counsel, to be informed of the nature and cause of the

accusation against him, to have a speedy and public trito meet the witnesses face to face, and to have

compulsory process to secure the attendance of witnes

in behalf;

(18) Freedom from being compelled to be a witness

against ones self, or from being forced to confess guilt,

from being induced by a promise of immunity or rewar

to make such confession, except when the person

confessing becomes a State witness;

(19) Freedom from excessive fines or cruel and unusua

punishment, unless the same is imposed or inflicted in

accordance with a statute which has not been judicially

declared unconstitutional; and



89

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or

not the defendant's act or omission constitutes a criminal

offense, the against grieved party has a right to

commence an entirely separate and distinct civil action

for damages, and for other relief. Such civil action shall

proceed independently of any criminal prosecution (if

the latter be instituted), and may be proved by apreponderance of evidence.

The indemnity shall include moral damages. Exemplary

damages may also be adjudicated.

The responsibility herein set forth is not demandable

from a judge unless his act or omission constitutes a

violation of the Penal Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a

sanction to the deeply cherished rights and freedoms enshrined in the

Constitution. Its message is clear; no man may seek to violate those sacred

rights with impunity. In times of great upheaval or of social and political stress,

when the temptation is strongest to yield — borrowing the words of Chief

Justice Claudio Teehankee — to the law of force rather than the force of law, it

is necessary to remind ourselves that certain basic rights and liberties are

immutable and cannot be sacrificed to the transient needs or imperious

demands of the ruling power. The rule of law must prevail, or else liberty will

perish. Our commitment to democratic principles and to the rule of law

compels us to reject the view which reduces law to nothing but the expression

of the will of the predominant power in the community. "Democracy cannot be

a reign of progress, of liberty, of justice, unless the law is respected by him who

makes it and by him for whom it is made. Now this respect implies a maximum

of faith, a minimum of Idealism. On going to the bottom of the matter, we

discover that life demands of us a certain residuum of sentiment which is not

derived from reason, but which reason nevertheless controls.2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents

postulate the view that as public officers they are covered by the mantle of

state immunity from suit for acts done in the performance of official duties orfunction In support of said contention, respondents maintain that —

Respondents are members of the Armed Forces of the

Philippines. Their primary duty is to safeguard public

safety and order. The Constitution no less provides that

the President may call them "to prevent or supress

lawless violence, invasion, insurrection or rebellion, or

imminent danger thereof." (Constitution, Article VII,

Section 9).

On January 17, 1981, the President issued Proclamation

No. 2045 lifting martial law but providing for the

continued suspension of the privilege of the writ of

habeas corpus in view of the remaining dangers to the

security of the nation. The proclamation also provided

"that the call to the Armed Forces of the Philippines to

prevent or suppress lawless violence, insuitection

rebellion and subversion shall continue to be in force and

effect."

Petitioners allege in their complaint that their causes of

action proceed from respondent General Ver's order to

Task Force Makabansa to launch pre-emptive strikes

against communist terrorist underground houses in

Metro Manila. Petitioners claim that this order and its

subsequent implementation by elements of the task

force resulted in the violation of their constitutional

rights against unlawful searches, seizures and arrest,

rights to counsel and to silence, and the right to property

and that, therefore, respondents Ver and the named

members of the task force should be held liable for

damages.

But, by launching a pre-emptive strike against commun

terrorists, respondent members of the armed forces

merely performed their official and constitutional dutie

To allow petitioners to recover from respondents by w

of damages for acts performed in the exercise of suchduties run contrary to the policy considerations to shie

respondents as public officers from undue interference

with their duties and from potentially disabling threats

hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v

Chuoco Tiaco, 16 Phil. 634), and upon the necessity of

protecting the performance of governmental and publ

functions from being harassed unduly or constantly

interrupted by private suits (McCallan v. State, 35 Cal.

App. 605; Metran v. Paredes, 79 Phil. 819).

xxx xxx xxx

The immunity of public officers from liability arising fro

the performance of their duties is now a settled

jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v.Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40

Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v.

Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894

Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco

supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 61

F. 2d 755).

Respondents-defendants who merely obeyed the lawfu

orders of the President and his call for the suppression

the rebellion involving petitioners enjoy such immunity

from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit

totally misplaced. The cases invoked by respondents actually involved acts

done by officers in the performance of official duties written the ambit of thepowers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield:

4

No one can be held legally responsible in damages or

otherwise for doing in a legal manner what he had

authority, under the law, to do. Therefore, if the

Governor-General had authority, under the law to dep

or expel the defendants, and circumstances justifying t

deportation and the method of carrying it out are left t

him, then he cannot be held liable in damages for the

exercise of this power. Moreover, if the courts are

without authority to interfere in any manner, for the

purpose of controlling or interferring with the exercise

the political powers vested in the chief executive

authority of the Government, then it must follow that

the courts cannot intervene for the purpose of declarinthat he is liable in damages for the exeercise of this

authority.

It may be that the respondents, as members of the Armed Forces of the

Philippines, were merely responding to their duty, as they claim, "to prevent

suppress lawless violence, insurrection, rebellion and subversion" in

accordance with Proclamation No. 2054 of President Marcos, despite the lifti

of martial law on January 27, 1981, and in pursuance of such objective, to

launch pre- emptive strikes against alleged communist terrorist underground

houses. But this cannot be construed as a blanket license or a roving

commission untramelled by any constitutional restraint, to disregard or

transgress upon the rights and liberties of the individual citizen enshrined in

and protected by the Constitution. The Constitution remains the supreme law



90

of the land to which all officials, high or low, civilian or military, owe obedience

and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any

private individual liable in damages for violating the Constitutional rights and

liberties of another, as enumerated therein, does not exempt the respondents

from responsibility. Only judges are excluded from liability under the said

article, provided their acts or omissions do not constitute a violation of the

Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their

assigned task or carrying out their mission with vigor. We have no quarrel with

their duty to protect the Republic from its enemies, whether of the left or of

the right, or from within or without, seeking to destroy or subvert our

democratic institutions and imperil their very existence. What we are merely

trying to say is that in carrying out this task and mission, constitutional and

legal safeguards must be observed, otherwise, the very fabric of our faith will

start to unravel. In the battle of competing Ideologies, the struggle for the mind

is just as vital as the struggle of arms. The linchpin in that psychological struggle

is faith in the rule of law. Once that faith is lost or compromised, the struggle

may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action

is barred by the suspension of the privilege of the writ of habeas corpus.Respondents contend that "Petitioners cannot circumvent the suspension of

the privilege of the writ by resorting to a damage suit aimed at the same

purpose-judicial inquiry into the alleged illegality of their detention. While the

main relief they ask by the present action is indemnification for alleged

damages they suffered, their causes of action are inextricably based on the

same claim of violations of their constitutional rights that they invoked in the

habeas corpus case as grounds for release from detention. Were the

petitioners allowed the present suit, the judicial inquiry barred by the

suspension of the privilege of the writ will take place. The net result is that

what the courts cannot do, i.e. override the suspension ordered by the

President, petitioners will be able to do by the mere expedient of altering the

title of their action."

We do not agree. We find merit in petitioners' contention that the suspension

of the privilege of the writ of habeas corpus does not destroy petitioners' rightand cause of action for damages for illegal arrest and detention and other

violations of their constitutional rights. The suspension does not render valid an

otherwise illegal arrest or detention. What is suspended is merely the right of

the individual to seek release from detention through the writ of habeas corpus

as a speedy means of obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for

damages are explicitly recognized in P.D. No. 1755 which amended Article 1146

of the Civil Code by adding the following to its text:

However, when the action (for injury to the rights of the

plaintiff or for a quasi-delict) arises from or out of any

act, activity or conduct of any public officer involving the

exercise of powers or authority arising from Martial Law

including the arrest, detention and/or trial of theplaintiff, the same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension

of the privilege of the writ of habeas corpus suspends petitioners' right of

action for damages for illegal arrest and detention, it does not and cannot

suspend their rights and causes of action for injuries suffered because of

respondents' confiscation of their private belongings, the violation of their right

to remain silent and to counsel and their right to protection against

unreasonable searches and seizures and against torture and other cruel and

inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed

upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation

No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension

of the privilege of the writ of habeas corpus. The question therefore has

become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior office

under the notion of respondent superior be answerable for damages, jointly

and severally with his subordinates, to the person whose constitutional rights

and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable tthe case. We agree. The doctrine of respondent superior has been generally

limited in its application to principal and agent or to master and servant (i.e.

employer and employee) relationship. No such relationship exists between

superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the

language of Article 32. The law speaks of an officer or employee or person

'directly' or "indirectly" responsible for the violation of the constitutional righ

and liberties of another. Thus, it is not the actor alone (i.e. the one directly

responsible) who must answer for damages under Article 32; the person

indirectly responsible has also to answer for the damages or injury caused to

the aggrieved party.

By this provision, the principle of accountability of public officials under the

Constitution 5 acquires added meaning and asgilrnes a larger dimension. No

longer may a superior official relax his vigilance or abdicate his duty to

supervise his subordinates, secure in the thought that he does not have to

answer for the transgressions committed by the latter against the

constitutionally protected rights and liberties of the citizen. Part of the factor

that propelled people power in February 1986 was the widely held perceptio

that the government was callous or indifferent to, if not actually responsible

for, the rampant violations of human rights. While it would certainly be go

naive to expect that violators of human rights would easily be deterred by the

prospect of facing damage suits, it should nonetheless be made clear in no

ones terms that Article 32 of the Civil Code makes the persons who are direct

as well as indirectly, responsible for the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col

Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo

Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt.Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates.

Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept a

defendants on the ground that they alone 'have been specifically mentioned

and Identified to have allegedly caused injuries on the persons of some of the

plaintiff which acts of alleged physical violence constitute a delict or wrong th

gave rise to a cause of action. But such finding is not supported by the record

nor is it in accord with law and jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 1

to 'acts of alleged physical violence" which constituted delict or wrong. Article

32 clearly specifies as actionable the act of violating or in any manner impedi

or impairing any of the constitutional rights and liberties enumerated therein

among others —

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without du

process of law;

3. The right to be secure in one's person, house, papers

and effects against unreasonable searches and seizures

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness again

one's self, or from being forced to confess guilt, or from

being induced by a promise of immunity or reward to



91

make a confession, except when the person confessing

becomes a state witness.

The complaint in this litigation alleges facts showing with abundant clarity and

details, how plaintiffs' constitutional rights and liberties mentioned in Article 32

of the Civil Code were violated and impaired by defendants. The complaint

speaks of, among others, searches made without search warrants or based on

irregularly issued or substantially defective warrants; seizures and confiscation,

without proper receipts, of cash and personal effects belonging to plaintiffs andother items of property which were not subversive and illegal nor covered by

the search warrants; arrest and detention of plaintiffs without warrant or

under irregular, improper and illegal circumstances; detention of plaintiffs at

several undisclosed places of 'safehouses" where they were kept

incommunicado and subjected to physical and psychological torture and other

inhuman, degrading and brutal treatment for the purpose of extracting

incriminatory statements. The complaint contains a detailed recital of abuses

perpetrated upon the plaintiffs violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated

"directly" should be held liable. Article 32 of the Civil Code encompasses within

the ambit of its provisions those directly, as well as indirectly, responsible for

its violation.

The responsibility of the defendants, whether direct or indirect, is amply setforth in the complaint. It is well established in our law and jurisprudence that a

motion to dismiss on the ground that the complaint states no cause of action

must be based on what appears on the face of the complaint.6 To determine

the sufficiency of the cause of action, only the facts alleged in the complaint,

and no others, should be considered.7 For this purpose, the motion to dismiss

must hypothetically admit the truth of the facts alleged in the complaint.8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for

lack of cause of action the complaint against all the defendants, except Major

Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint

contained allegations against all the defendants which, if admitted

hypothetically, would be sufficient to establish a cause or causes of action

against all of them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing thecomplaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco

Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo

Mansos and Rolando Salutin, on the basis of the alleged failure of said plaintiffs

to file a motion for reconsideration of the court's resolution of November 8,

1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8,

1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only

by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales,

counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr.,

counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for

Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty.

Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on

behalf of all the plaintiffs. And this must have been also the understanding of

defendants' counsel himself for when he filed his comment on the motion, he

furnished copies thereof, not just to the lawyers who signed the motion, but to

all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene

Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr.,

Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra

and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing

attorneys did so on behalf of all the plaintiff. They needed no specific authority

to do that. The authority of an attorney to appear for and in behalf of a party

can be assumed, unless questioned or challenged by the adverse party or the

party concerned, which was never done in this case. Thus, it was grave abuse

on the part of respondent judge to take it upon himself to rule that the motion

to set aside the order of November 8, 1953 dismissing the complaint was filed

only by some of the plaintiffs, when by its very language it was clearly intend

to be filed by and for the benefit of all of them. It is obvious that the

respondent judge took umbrage under a contrived technicality to declare tha

the dismissal of the complaint had already become final with respect to some

of the plaintiffs whose lawyers did not sign the motion for reconsideration.

Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of threspondent court, dated November 8, 1983, its order dated May 11, 1984 an

its resolution dated September 21, 1984. Let the case be remanded to the

respondent court for further proceedings. With costs against private

respondents.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin,

Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Gutierrez, Jr., J., concur in the result.

Padilla, J., took no part.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court's judgment at bar makes clear that all persons, be they publicofficers or employees, or members of the military or police force or private

individuals who directly or indirectly obstruct, defeat, violate or in any manne

impede or impair the constitutional rights and civil liberties of another person

stand liable and may be sued in court for damages as provided in Art. 32 of th

Civil Code.

The case at bar specifically upholds and reinstates the civil action for damage

filed in the court below by petitioners-plaintiffs for illegal searches conducted

by military personnel and other violations of their constitutional rights and

liberties. At the same time it rejects the automatic application of the principle

of respondeat superior or command responsibility that would hold a superior

officer jointly and severally accountable for damages, including moral and

exemplary, with his subordinates who committed such transgressions.

However, the judgment gives the caveat that a superior officer must not

abdicate his duty to properly supervise his subordinates for he runs the risk obeing held responsible for gross negligence and of being held under the cited

provision of the Civil Code as indirectly and solidarily accountable with

the tortfeasor .

The rationale for this rule of law was best expressed by Brandeis in wise: "In a

government of laws, existence of the government be imperilled following it

fails to observe the law scrupulously. Our government is the potent

omnipresent teacher. For good or ill, it teaches the whole people by example

Crime is contagious. If the government becomes the law breaker, it breeds

contempt for the law, it invites every man to become a law unto himself, it

invites anarchy. To declare that in the administration of criminal law the end

justifies the means ... would bring terrible retribution."1



92

As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the

operations of the dreaded secret marshals during the past regime, 'In a

democratic state, you don't stoop to the level of criminals. If we stoop to what

they do, then we're no better than they ... there would be no difference. ... The

Supreme Court stands as the guarantor of the Constitutional and human rights

of all persons within its jurisdiction and cannot abdicate its basic role under the

Constitution that these rights be respected and enforced. The spirit and letter

of the Constitution negates as contrary to the basic precepts of human rights

and freedom that a person's life be snuffed out without due process in a split

second even if he is caught in flagrante delicto — unless it was caned for as an

act of self-defense by the law agents using reasonable means to prevent or

repel an unlawful aggression on the part of the deceased.

Needless to say, the criminal acts of the "Sparrow Units" or death squads of the

NPA which have infutrated the cities and suburbs and performed their

despicable killings of innocent civilians and military and police officers

constitute an equally perverse violation of the sanctity of human life and must

be severely condemned by all who adhere tothe Rule of the Law.

It need only be pointed out that one of the first acts of the present government

under President Corazon C. Aquino after her assumption of office in February,

1986 was to file our government's ratification and access to all human rights

instruments adopted under the auspices of the United Nations, declaring

thereby the government's commitment to observe the precepts of the United

Nations Charter and the Universal Declaration of Human Rights. More than

this, pursuant to our Constitution which the people decisively ratified on

February 2, 1987, the independent office of the Commission on Human Rights

hats been created and organized with ample powers to investigate human

rights violations and take remedial measures against all such violations by the

military as well as by the civilian groups.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court's judgment at bar makes clear that all persons, be they public

officers or employees, or members of the military or police force or private

individuals who directly or indirectly obstruct, defeat, violate or in any manner

impede or impair the constitutional rights and civil liberties of another person,

stand liable and may be sued in court for damages as provided in Art. 32 of the

Civil Code.

The case at bar specifically upholds and reinstates the civil action for damages

filed in the court below by petitioners-plaintiffs for illegal searches conducted

by military personnel and other violations of their constitutional rights and

liberties. At the same time it rejects the automatic application of the principle

of respondeat superior or command responsibility that would hold a superior

officer jointly and severally accountable for damages, including moral and

exemplary, with his subordinates who committed such transgressions.However, the judgment gives the caveat that a superior officer must not

abdicate his duty to properly supervise his subordinates for he runs the risk of

being held responsible for gross negligence and of being held under the cited

provision of the Civil Code as indirectly and solidarily accountable with

the tortfeasor .

The rationale for this rule of law was best expressed by Brandeis in wise: "In a

government of laws, existence of the government be imperilled following it

fails to observe the law scrupulously. Our government is the potent

omnipresent teacher. For good or ill, it teaches the whole people by example.

Crime is contagious. If the government becomes the law breaker, it breeds

contempt for the law, it invites every man to become a law unto himself, it

invites anarchy. To declare that in the administration of criminal law the end

justifies the means ... would bring terrible retribution."1

As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the

operations of the dreaded secret marshals during the past regime, 'In a

democratic state, you don't stoop to the level of criminals. If we stoop to wha

they do, then we're no better than they ... there would be no difference. ... T

Supreme Court stands as the guarantor of the Constitutional and human righ

of all persons within its jurisdiction and cannot abdicate its basic role under t

Constitution that these rights be respected and enforced. The spirit and lette

of the Constitution negates as contrary to the basic precepts of human rights

and freedom that a person's life be snuffed out without due process in a split

second even if he is caught in flagrante delicto — unless it was caned for as a

act of self-defense by the law agents using reasonable means to prevent or

repel an unlawful aggression on the part of the deceased.

Needless to say, the criminal acts of the "Sparrow Units" or death squads of t

NPA which have infutrated the cities and suburbs and performed their

despicable killings of innocent civilians and military and police officers

constitute an equally perverse violation of the sanctity of human life and mus

be severely condemned by all who adhere tothe Rule of the Law.

It need only be pointed out that one of the first acts of the present governme

under President Corazon C. Aquino after her assumption of office in February

1986 was to file our government's ratification and access to all human rights

instruments adopted under the auspices of the United Nations, declaring

thereby the government's commitment to observe the precepts of the United

Nations Charter and the Universal Declaration of Human Rights. More than

this, pursuant to our Constitution which the people decisively ratified on

February 2, 1987, the independent office of the Commission on Human Right

hats been created and organized with ample powers to investigate human

rights violations and take remedial measures against all such violations by the

military as well as by the civilian groups.



93

G.R. No. 160739 July 17, 2013

ANITA MANGILA, Petitioner,

vs.

JUDGE HERIBERTO M. PANGILINAN, ASST. CITY PROSECUTOR II LUCIA JUDYSOLINAP, and NATIONAL BUREAU OF INVESTIGATION (DIRECTOR REYNALDOWYCOCO), Respondents.

D E C I S I O N

BERSAMIN, J.:

Restraint that is lawful and pursuant to a court process cannot be inquired into

through habeas corpus.

Antecedents

On June 16, 2003, seven criminal complaints charging petitioner Anita Mangila

and four others with syndicated estafa in violation of Article 315 of the Revised

Penal Code, in relation to Presidential Decree No. 1689, and with violations of

Section 7(b) of Republic Act No. 8042 (Migrant Workers and Overseas Filipino

Act of 1995) were filed in the Municipal Trial Court in Cities in Puerto PrincesaCity (MTCC), docketed as Criminal Cases No. 16916 to No. 16922. The

complaints arose from the recruiting and promising of employment by Mangila

and the others to the private complainants as overseas contract workers in

Toronto, Canada, and from the collection of visa processing fees, membership

fees and on-line application the private complainants without lawful authority

from the Philippine Overseas Employment Administration (POEA).1

On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding

Judge of the MTCC, conducted a preliminary investigation on the complaints.

After examining Miguel Aaron Palayon, one of the complainants, Judge

Pangilinan issued a warrant for the arrest of Mangila and her cohorts without

bail.2 On the next day, the entire records of the cases, including the warrant of

arrest, were transmitted to the City Prosecutor of Puerto Princesa City for

further proceedings and appropriate action in accordance with the prevailing

rules.3

As a consequence, Mangila was arrested on June 18, 2003 and detained at the

headquarters on Taft Avenue, Manila of the National Bureau of Investigation

(NBI).4

Claiming that Judge Pangilinan did not have the authority to conduct the

preliminary investigation; that the preliminary investigation he conducted was

not yet completed when he issued the warrant of arrest; and that the issuance

of the warrant of arrest was without sufficient justification or without a prior

finding of probable cause, Mangila filed in the Court of Appeals (CA)a petition

for habeas corpus to obtain her release from detention. Her petition averred

that the remedy of habeas corpus was available to her because she could no

longer file a motion to quash or a motion to recall the warrant of arrest

considering that Judge Pangilinan had already forwarded the entire records of

the case to the City Prosecutor who had no authority to lift or recall thewarrant.5

In its resolution promulgated on October 14, 2003,6 the CA denied the petition

for habeas corpus for its lack of merit, explaining:

As a general rule, a writ of habeas corpus will not be granted where relief may

be had or could have been procured by resort to another general remedy. As

pointed out in Luna vs. Plaza, if petitioner is detained by virtue of a warrant of

arrest, which is allegedly invalid, the remedy available to her is not a petition

for habeas corpus but a petition to quash the warrant of arrest or a petition for

a reinvestigation of the case by the Municipal Judge or by the Provincial Fiscal.

Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that

the Municipal Judge who conducted the preliminary investigation shall transmit

his resolution, together with the record of the case, including the warrant of

arrest, to the Provincial Prosecutor, who shall review the same and order the

release of an accused who is detained if no probable cause is found against

him. Thus, the proper remedy available to petitioner is for her to file with the

Provincial Prosecutor a motion to be released from detention on the grounds

alleged in the instant petition.

WHEREFORE, the petition for habeas corpus is DENIED for lack of merit.

SO ORDERED.7

Mangila moved for the reconsideration of the denial of her petition for habea

corpus,8 but the CA denied the motion on November 19, 2003.

9

Hence, this appeal via petition for review on certiorari.

Issue

Did the CA err in ruling that habeas corpus was not the proper remedy to

obtain the release of Mangila from detention?

Ruling of the Court

The petition for review lacks merit.

The high prerogative writ of habeas corpus has been devised as a speedy and

effective remedy to relieve persons from unlawful restraint. In Caballes v. Cou

of Appeals,10

the Court discoursed on the nature of the special proceeding of

habeas corpus in the following manner:

A petition for the issuance of a writ of habeas corpus is a special proceeding

governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings, i

was held that habeas corpus is that of a civil proceeding in character. It seeks

the enforcement of civil rights. Resorting to the writ is not to inquire into the

criminal act of which the complaint is made, but into the right of liberty,

notwithstanding the act and the immediate purpose to be served is relief fro

illegal restraint. The rule applies even when instituted to arrest a criminal

prosecution and secure freedom. When a prisoner petitions for a writ of

habeas corpus, he thereby commences a suit and prosecutes a case in that

court.

Habeas corpus is not in the nature of a writ of error; nor intended as substitu

for the trial court’s function. It cannot take the place of appeal, certiorari or

writ of error. The writ cannot be used to investigate and consider questions o

error that might be raised relating to procedure or on the merits. The inquiry

a habeas corpus proceeding is addressed to the question of whether the

proceedings and the assailed order are, for any reason, null and void. The wri

is not ordinarily granted where the law provides for other remedies in the

regular course, and in the absence of exceptional circumstances. Moreover,

habeas corpus should not be granted in advance of trial. The orderly course o

trial must be pursued and the usual remedies exhausted before resorting to t

writ where exceptional circumstances are extant. In another case, it was heldthat habeas corpus cannot be issued as a writ of error or as a means of

reviewing errors of law and irregularities not involving the questions of

jurisdiction occurring during the course of the trial, subject to the caveat that

constitutional safeguards of human life and liberty must be preserved, and no

destroyed. It has also been held that where restraint is under legal process,

mere errors and irregularities, which do not render the proceedings void, are

not grounds for relief by habeas corpus because in such cases, the restraint is

not illegal.

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem

when instituted for the sole purpose of having the person of restraint

presented before the judge in order that the cause of his detention may be

inquired into and his statements final. The writ of habeas corpus does not act

upon the prisoner who seeks relief, but upon the person who holds him in wh

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94

is alleged to be the unlawful authority. Hence, the only parties before the court

are the petitioner (prisoner) and the person holding the petitioner in custody,

and the only question to be resolved is whether the custodian has authority to

deprive the petitioner of his liberty. The writ may be denied if the petitioner

fails to show facts that he is entitled thereto ex merito justicias.

A writ of habeas corpus, which is regarded as a "palladium of liberty," is a

prerogative writ which does not issue as a matter of right but in the sound

discretion of the court or judge. It is, however, a writ of right on properformalities being made by proof. Resort to the writ is not to inquire into the

criminal act of which a complaint is made but unto the right of liberty,

notwithstanding the act, and the immediate purpose to be served is relief from

illegal restraint. The primary, if not the only object of the writ of habeas corpus

ad subjuciendum, is to determine the legality of the restraint under which a

person is held.11

(Bold underscoring supplied for emphasis)

The object of the writ of habeas corpus is to inquire into the legality of the

detention, and, if the detention is found to be illegal, to require the release of

the detainee. Equally well-settled however, is that the writ will not issue where

the person in whose behalf the writ is sought is out on bail, or is in the custody

of an officer under process issued by a court or judge with jurisdiction or by

virtue of a judgment or order of a court of record .12

There is no question that when the criminal complaints were lodged againstMangila and her cohorts on June 16, 2003,Judge Pangilinan, as the Presiding

Judge of the MTCC, was empowered to conduct preliminary investigations

involving "all crimes cognizable by the proper court in their respective

territorial jurisdictions." His authority was expressly provided in Section 2, Rule

112 of the Revised Rules of Criminal Procedure, to wit:

Section 2.Officers authorized to conduct preliminary investigations.

– The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial

Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigations shall include all crimes

cognizable by the proper court in their respective territorial jurisdictions. (2a)

Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the

investigating judge could issue a warrant of arrest during the preliminary

investigation even without awaiting its conclusion should he find after an

examination in writing and under oath of the complainant and the witnesses in

the form of searching questions and answers that a probable cause existed,

and that there was a necessity of placing the respondent under immediatecustody in order not to frustrate the ends of justice.1âwphi1 In the context of

this rule, Judge Pangilinan issued the warrant of arrest against Mangila and her

cohorts. Consequently, the CA properly denied Mangila’s petition for habeas

corpus because she had been arrested and detained by virtue of the warrant

issued for her arrest by Judge Pangilinan, a judicial officer undeniably

possessing the legal authority to do so.

It is relevant to point out at this juncture that the authority of the MTC and

MTCC judges to conduct preliminary investigations was removed only effective

on October 3, 2005 pursuant to A.M. No. 05-8-26-SC.

With Mangila’s arrest and ensuing detention being by virtue of the order

lawfully issued by Judge Pangilinan, the writ of habeas corpus was not an

appropriate remedy to relieve her from the restraint on her liberty. This is

because the restraint, being lawful and pursuant to a court process, could no

be inquired into through habeas corpus. To quote the dictum enunciated by

Justice Malcolm in Quintos v. Director of Prisons:13

The writ of habeas corpus secures to a prisoner the right to have the cause of

his detention examined and determined by a court of justice, and to have

ascertained if he is held under lawful authority. The function of habeas corpu

where the party who has appealed to its aid is in custody under process, does

not extend beyond an inquiry into the jurisdiction of the court by which it waissued and the validity of the process upon its face. It is not a writ of error. xxx

(Bold underscoring supplied for emphasis)

Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:

Section 4.When writ not allowed or discharge authorized. — If it appears tha

the person alleged to be restrained of his liberty is in the custody of an officer

under process issued by a court or judge or by virtue of a judgment or order o

a court of record, and that the court or judge had jurisdiction to issue the

process, render the judgment, or make the order, the writ shall not be allowe

or if the jurisdiction appears after the writ is allowed, the person shall not be

discharged by reason of any informality or defect in the process, judgment, o

order. Nor shall anything in this rule be held to authorize the discharge of a

person charged with or convicted of an offense in the Philippines, or of a

person suffering imprisonment under lawful judgment. (Bold underscoringsupplied for emphasis)

Still, Mangila harps on the procedural flaws supposedly committed by Judge

Pangilinan in her attempt to convince the Court on her entitlement to the

issuance of the writ of habeas corpus. She insists that the illegality and

invalidity of the warrant of arrest because of its having been issued without a

exhaustive examination of the complainants and the witnesses in writing and

under oath; without a prior finding of probable cause; and without

consideration of the necessity for its issuance in order not to frustrate the en

of justice were enough reasons for granting the writ of habeas corpus.14

Mangila fails to persuade.

To begin with, Judge Pangilinan issued the order of arrest after examiningPalayon, one of the complainants against Mangila and her cohorts. If he, as th

investigating judge, considered Palayon’s evidence sufficient for finding

probable cause against her and her cohorts, which finding the Court justifiab

presumes from his act of referring the case and its records to the Office of th

City Prosecutor on the day immediately following the preliminary investigatio

he conducted, her petition for habeas corpus could not be the proper remedy

by which she could assail the adequacy of the adverse finding. Even granting

that there was a failure to adhere to the law or rule, such failure would not be

the equivalent of a violation of her constitutional rights.15

Secondly, it was not procedurally correct for her to impugn the issuance of th

warrant of arrest by hinting that the investigating judge did not at all conside

the necessity of determining the existence of probable cause for its issuance

due to time constraints and in order not to frustrate the ends of justice, for th

consideration was presumed.

And, lastly, it was clear that under Section 5 ,16

Rule 112 of the Revised Rules o

Criminal Procedure, the resolution of the investigating judge was not final bu

was still subject to the review by the public prosecutor who had the power to

order the release of the detainee if no probable cause should beultimately

found against her. In the context of the rule, Mangila had no need to seek the

issuance of the writ of habeas corpus to secure her release from detention. H

proper recourse was to bring the supposed irregularities attending the condu

of the preliminary investigation and the issuance of the warrant for her arres

to the attention of the City Prosecutor, who had been meanwhile given the

most direct access to the entire records of the case, including the warrant of

arrest, following Judge Pangilinan’s transmittal of them to the City Prosecuto

for appropriate action.17

We agree with the CA, therefore, that the writ of

habeas corpus could not be used as a substitute for another available remedy































95

WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14,

2003 and November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the

petitioner to pay the costs of suit.

SO ORDERED.



96

G.R. No. 134504 March 17, 2000

JOSELITO V. NARCISO, petitioner,

vs.

FLOR MARIE STA. ROMANA-CRUZ, respondent.

PANGANIBAN, J.:

When the penalty prescribed by law is death, reclusion perpetua or life

imprisonment, a hearing must be conducted by the trial judge before bail can

be granted to the accused. Absent such hearing, the order granting bail is void

for having been issued with grave abuse of discretion. In parricide, the accused

cannot be considered an offended party just because he was married to the

deceased. In the interest of justice and in view of the peculiar circumstances of

this case, the sister of the victim may be deemed to be an "offended party";

hence, she has the legal personality to challenge the void order of the trial

court.

The Case

We invoke the foregoing principles in rejecting the Petition for Review

on Certiorari before us, assailing the February 26, 1998 Decision 1 and the June

29, 1998 Resolution of the Court of Appeals (CA), 2 which reversed and setaside the Order of Executive Judge Pedro T. Santiago of the Regional Trial Court

(RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179 entitled

"People of the Philippines v . Joselito V . Narciso."

The dispositive portion of the challenged CA Decision reads:

WHEREFORE, the petition for certiorari is hereby GRANTED and the

order granting bail is annulled and set aside. 3

The assailed Resolution, on the other hand, denied petitioner's Motion for

Reconsideration.

The full text of the August 3, 1992 RTC Order, which the Court of Appeals

annulled and set aside, reads as follows:

Accused who is present filed thru counsel a Motion to Allow

Accused Joselito V. Narciso to Post Bail.

Considering that the Presiding Judge of Branch 83 who is hearing

this case is on leave and the Pairing Judge Honorable Salvador

Ceguerra is no longer within the premises, there being no objection

by the City Prosecutor Candido Rivera to the accused posting a

cashbond of P150,000.00, the undersigned in his capacity as

Executive Judge hereby approves the same. 4

The Facts of the Case

The undisputed antecedents of the case were summarized by the Court of

Appeals as follows:

1) After conducting a preliminary investigation on the death of

Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City

Prosecutor Myrna Dimaranan Vidal of Quezon City recommended

and thereafter filed, the information for parricide against Joselito

Narciso on November 13, 1991, with the Regional Trial Court of

Quezon City, docketed therein as Criminal Case No. Q-91-24179.

2) Joselito Narciso thereafter asked for a review of the prosecutor's

resolution [before] the Department of Justice (DOJ) which was

however denied. Joselito Narciso moved for reconsideration, which

was still denied by the DOJ.

3) Failing before DOJ, the accused on February 6, 1992, filed in

Criminal Case No. Q-91-24179 an "Omnibus Motion for

Reinvestigation and to Lift the Warrant of Arrest". The Motion wa

granted and the case was set for reinvestigation by another

prosecutor.

4) Assistant Prosecutor Lydia A. Navarro, to whom the case was

assigned for reinvestigation, found no reason to disturb the findin

of the previous prosecutor and recommended the remand of thecase to the court for arraignment and trial.

5) On August 3, 1992, accused filed an "Urgent Ex-Parte (Ex

Abundanti Cautela) to Allow Accused Joselito Narciso to Post Bail"

The Public Prosecutor registered no objection and said motion wa

granted on the same day, allowing accused to post bail at

P150,000.00.

x x x x x x x x x

6) On August 14, 1992, the private prosecutor representing privat

complainant Flor Marie Sta. Romana-Cruz, a sister of accused's

deceased wife, filed an "Urgent Motion to Lift Order Allowing

Accused To Post Bail".

7) Accused objected to the aforesaid urgent motion by filing a

"Motion to Expunge 1) Notice of Appearance of the Private

Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accus

to Post Bail".

8) Arraignment was conducted on September 14, 1992 and the ca

was set for hearing on November 9, 16, 23, December 2, 9, 1992,

January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24 1993.

9) On October 15, 1992, private complainant through counsel filed

her opposition to the motion to expunge [filed by] accused.

10). On November 3, 1992 private complainant moved for the

postponement of the trials set on November 9, 16 and 23 and the

subsequent hearings thereon pending the resolution of their

"Urgent Motion to Lift Order Allowing Accused To Post Bail".

11) On November 9, 1992, the court issued the first assailed order

stating therein to wit:

O R D E R

Counsel for the accused, upon being informed of the

motion for postponement dated November 3, 1992 file

by the private complainant, through counsel, offered n

objection to the cancellation of today's trial but not the

trial set on November 16, 23 and December 2 and 9,

1992 for the reason that the trial can proceedindependently of the pending "Urgent Motion to Lift

Order Allowing the Accused to Post Bail".

WHEREFORE, the trial set for today is hereby cancelled

and re-set on November 16, 1992 at 10:30 o'clock in th

morning, as previously scheduled.

SO ORDERED.

12) On November 16, 1992, the court cancelled the hearing upon

motion of the public prosecutor because no prosecution witness

was available.

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97

13) [I]n the hearing of November 23, 1992, the private prosecutor

again moved for postponement because of the pendency of his

"Motion to Lift Order Allowing Accused to Post Bail". On the same

date, the court issued the second assailed order which reads:

O R D E R

On motion of the Asst. City Prosecutor, for the reason

that there is no showing in the record that the privatecomplainant was duly notified, hence, there is no

available witness this morning, the trial set for today is

hereby cancelled and reset on December 2 and 9, 1992

both at 10:30 o'clock in the morning, as previously

scheduled.

Let a subpoena be issued to complainant Corazon [sic]

Sta. Romana-Narciso, the same to be served personally

by the Deputy Sheriff/Process server of this Court.

The accused is notified of this Order in open court.

SO ORDERED.

Not obtaining any resolution on her "Motion To Lift Order Allowing

Accused to Post Bail", private complainant filed this petition [before

the CA].

As earlier mentioned, the Court of Appeals granted private respondent's

Petition for Certiorari . Hence, this recourse to us via Rule 45 of the Rules of

Court. 5

The Issues

Petitioner imputes to the Court of Appeals this alleged error:

The Respondent Court of Appeals has erroneously

decided questions of substance, in a manner not in

accord with law, the Rules of Court and applicable

jurisprudence, as exemplified in the decisions of this

Honorable Court, when it reversed and set aside the

order of the Regional Trial Court of Quezon City which

granted the petitioner his constitutional right to bail,

considering the absence of strong evidence or proof of

his guilt, and more especially when the public

prosecutors, who have direct control of the proceedings

and after assessment of the evidence, have themselves

recommended the grant of bail.6

Respondent, on the other hand, poses the following issues: 7

A

Whether or not the Respondent Court of Appeals

correctly ruled that the Order of the Regional Trial Court

which granted bail to the petitioner is substantially and

procedurally infirm notwithstanding the absence of any

opposition from the public prosecutor.

B

Whether or not the private respondent has the legal

personality to intervene in the present criminal case.

To resolve this case, the Court believes that two issues must be

taken up; namely, (1) the validity of the grant of bail and (2) privat

respondent's standing to file the Petition before the CA.

The Court's Ruling

The Petition is devoid of merit.

First Issue:

Validity of the Grant of Bail

Sec. 13, Article III of the Constitution, provides: "All persons, except those

charged with offenses punishable byreclusion perpetua when evidence of gu

is strong, shall, before conviction, be bailable by sufficient sureties, or be

released on recognizance as may be provided by law. The right to bail shall no

be impaired even when the privilege of the writ of habeas corpus is suspende

Excessive bail shall not be required." Furthermore, Section 7, Article 114 of th

Rules of Court, as amended, also provides: "No person charged with a capital

offense, or an offense punishable by reclusion perpetua or life imprisonment

when evidence of guilt is strong, shall be admitted to bail regardless of the

stage of the criminal prosecution."

Although petitioner was charged with parricide which is punishable

with reclusion perpetua, he argued before the CA that he was entitled to bail

because the evidence of his guilt was not strong. He contended that the

prosecutor's conformity to his Motion for Bail was tantamount to a finding th

the prosecution evidence against him was not strong.

The Court of Appeals ruled, however, that there was no basis for such finding

since no hearing had been conducted on the application for bail — summary

otherwise. The appellate court found that only ten minutes had elapsed

between the filing of the Motion by the accused and the Order granting bail,

lapse of time that could not be deemed sufficient for the trial court to receive

and evaluate any evidence. We agree with the CA.

Stressing in Basco v . Rapatalo 8 that the judge had the duty to determine

whether the evidence of guilt was strong, the Court held:

When the grant of bail is discretionary, the prosecution has the

burden of showing that the evidence of guilt against the accused i

strong. However, the determination of whether or not the eviden

of guilt is strong, being a matter of judicial discretion, remains wit

the judge. "This discretion by the very nature of things, may rightly

be exercised only after the evidence is submitted to the court at t

hearing. Since the discretion is directed to the weight of the

evidence and since evidence cannot properly be weighed if not du

exhibited or produced before the court, it is obvious that a proper

exercise of judicial discretion requires that the evidence of guilt be

submitted to the court, the petitioner having the right of cross

examination and to introduce his own evidence in rebuttal."

x x x x x x x x x

Consequently, in the application for bail of a person charged with

capital offense punishable by death,reclusion perpetua or life

imprisonment, a hearing, whether summary or otherwise in the

discretion of the court, must actually be conducted to determine

whether or not the evidence of guilt against the accused is strong

"A summary hearing means such brief and speedy method of

receiving and considering the evidence of guilt as is practicable an

consistent with the purpose of hearing which is merely to determ

the weight of evidence for the purposes of bail. On such hearing, t

court does not sit to try the merits or to enter into any nice inquiry

as to the weight that ought to be allowed to the evidence for or

against the accused, nor will it speculate on the outcome of the tr



















98

or on what further evidence may be therein offered and admitted.

The course of inquiry may be left to the discretion of the court

which may confine itself to receiving such evidence as has reference

to substantial matters, avoiding unnecessary thoroughness in the

examination and cross examination." If a party is denied the

opportunity to be heard, there would be a violation of procedural

due process. (Emphasis supplied.)

Jurisprudence is replete with decisions compelling judges to conduct therequired hearings in bail applications, in which the accused stands charged with

a capital offense. The absence of objection from the prosecution is never a

basis for the grant of bail in such cases, for the judge has no right to presume

that the prosecutor knows what he is doing on account of familiarity with the

case. "Said reasoning is tantamount to ceding to the prosecutor the duty of

exercising judicial discretion to determine whether the guilt of the accused is

strong. Judicial discretion is the domain of the judge before whom the petition

for provisional liberty will be decided. The mandated duty to exercise discretion

has never been reposed upon the prosecutor. 9

Imposed in Baylon v . Sison 10

was this mandatory duty to conduct a hearing

despite the prosecution's refusal to adduce evidence in opposition to the

application to grant and fix bail. We quote below the pertinent portion of the

Decision therein:

The importance of a hearing has been emphasized in not a few

cases wherein the Court ruled that even if the prosecution refuses

to adduce evidence or fails to interpose an objection to the motion

for bail, it is still mandatory for the court to conduct a hearing or ask

searching questions from which it may infer the strength of the

evidence of guilt, or the lack of it, against the accused.

In Gimeno v . Arcueno Sr .,11

the Court also held:

The grant of bail is a matter of right except in cases involving capital

offenses when the matter is left to the sound discretion of the

court. That discretion lies, not in the determination whether or not a

hearing should be held but in the appreciation and evaluation of the

prosecution's evidence of guilt against the accused. . . . A hearing is

plainly indispensable before a judge can aptly be said to be in aposition to determine whether the evidence for the prosecution is

weak or strong.

And in Concerned Citizens v . Elma, 12

the Court ruled:

It is true that the weight of the evidence adduced is addressed to

the sound discretion of the court. However, such discretion may

only be exercised after the hearing called to ascertain the degree of

guilt of the accused for the purpose of determining whether or not

he should be granted liberty.

Basco v . Rapatalo 13

summarized several cases 14

that emphasized the

mandatory character of a hearing in a petition for bail in a capital case. It

enunciated the following duties of the trial judge in such petition.

(1) Notify the prosecutor of the hearing of the application for bail or

require him to submit his recommendation (Section 18, Rule 114 of

the Rules of Court as amended;

(2) Conduct a hearing of the application for bail regardless of

whether or not the prosecution refuses to present evidence to show

that the guilt of the accused is strong for the purpose of enabling

the court to exercise its sound discretion (Sections 7 and 8, supra);

(3) Decide whether the evidence of guilt of the accused is strong

based on the summary of evidence of the prosecution (Baylon v.

Sison, supra);

(4) If the guilt of the accused is not strong, discharge the accused

upon the approval of the bailbond. (Section 19, supra). Otherwise

petition should be denied.

The Court added: "The above-enumerated procedure should now leave no

room for doubt as to the duties of the trial judge in cases of bail applications.

So basic and fundamental is it to conduct a hearing in connection with the

grant of bail in the proper cases that it would amount to judicial apostasy for

any member of the judiciary to disclaim knowledge or awareness thereof."

Additionally, the court's grant or refuse of bail must contain a summary of th

evidence for the prosecution, on the basis of which should be formulated the

judge's own conclusion on whether such evidence is strong enough to indicat

the guilt of the accused. The summary thereof is considered an aspect of

procedural due process for both the prosecution and the defense; its absenc

will invalidate the grant or the denial of the application for bail. 15

Clearly, the grant of bail by Executive Judge Santiago was laced with grave

abuse of discretion and the Court of Appeals was correct in reversing him.

Second Issue:

Respondent's Standing to File the Petition

Petitioner attacks respondent's legal standing to file the Petition

for Certiorari before the appellate court, maintaining that only the public

prosecutor or the solicitor general may challenge the assailed Order. He

invokesPeople v . Dacudao 16

which ruled:

. . . A private prosecutor in a criminal case has no authority to act f

the People of the Philippines before this Court. It is the

Government's counsel, the Solicitor General who appears in crimin

cases or incidents before the Supreme Court. At the very least, the

Provincial Fiscal himself, with the conformity of the Solicitor

General, should have raised the issue (of whether or not the

prosecution was deprived of procedural due process on account o

the grant of bail to the accused without any hearing on the motion

for bail) before us, instead of the private prosecutor with theconformity of the Assistant Provincial Fiscal of Cebu.

He also cites Republic v. Partisala 17

which held as follows:

We make it known that only the Solicitor General can bring or

defend actions on behalf of the Republic of the Philippines.

Henceforth actions filed in the name of the Republic of the

Philippines if not initiated by the Solicitor General will be summar

dismissed.

Citing the "ends of substantial justice," People v . Calo, 18

however , provided a

exception to the above doctrines in this manner:

While the rule is, as held by the Court of Appeals, only the SolicitoGeneral may bring or defend actions on behalf of the Republic of

the Philippines, or represent the People or the State in criminal

proceedings pending in this Court and the Court of Appeals

(Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substant

justice would be better served, and the issues in this action could

determined in a more just, speedy and inexpensive manner, by

entertaining the petition at bar. As an offended party in a crimina

case, private petitioner has sufficient personality and a valid

grievance against Judge Adao's order granting bail to the alleged

murderers of his (private petitioner's) father.

In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled tha

the offended parties in criminal cases have sufficient interest and

personality as "person(s) aggrieved" to file the special civil action o











































99

prohibition and certiorari under Sections 1 and 2 of Rule 65 in line

with the underlying spirit of the liberal construction of the Rules of

Court in order to promote their object, thus:

Furthermore, as offended parties in the pending criminal

case before petitioner judge, it cannot be gainsaid that

respondents have sufficient interest and personality as

"person(s) aggrieved" by petitioner judge's ruling on his

non-disqualification to file the special civil action undersections 1 and 2 of Rule 65. Recently, in line with the

underlying spirit of a liberal construction of the Rules of

Court in order to promote their object, as against the

literal interpretation of Rule 110, section 2, we held,

overruling the implication of an earlier case, that a

widow possesses the right as an offended party to file a

criminal complaint for the murder of her deceased

husband. (Id ., p. 699)

The ends of substantial justice indeed require the affirmation of the appellate

court's ruling on this point. Clearly, the assailed Order of Judge Santiago was

issued in grave abuse of discretion amounting to lack of jurisdiction. A void

order is no order at all.19

It cannot confer any right or be the source of any

relief. This Court is not merely a court of law; it is likewise a court of justice.

To rule otherwise would leave the private respondent without any recourse to

rectify the public injustice brought about by the trial court's Order, leaving her

with only the standing to file administrative charges for ignorance of the law

against the judge and the prosecutor. A party cannot be left without recourse

to address a substantive issue in law.

Moreover, we agree with the Office of the Solicitor General that "it is too late

in the day for the petitioner to challenge the legal personality of private

respondent considering that it was never disputed by [him] during the

preliminary investigation of the case, in his appeal to the Department of Justice

and during the reinvestigation of the case." 20

Corollary to the question of standing, petitioner submits that even if the

exception were made to apply, private respondent is not an "offended party"

who is granted the right to challenge the assailed RTC Order. He maintains thatonly the compulsory heirs of the deceased, who are the accused himself and

his minor child, may file the instant action. We disagree.

It should be remembered that the crime charged against the private

respondent is parricide; hence, the accused cannot be regarded as an offended

party. That would be a contradiction in terms and an absurdity in fact. Nor can

one expect the minor child to think and to act for himself. Hence, we rule that

in view of the peculiar circumstances of this case, the sister of the deceased is a

proper party-litigant who is akin to the "offended party," she being a closer

relative of the deceased. There is no closer kin who may be expected to take up

the cudgels of justice for the deceased.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs

against petitioner.

SO ORDERED.1âwphi1.nêt

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.











100

G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,represented by the Philippine Department of Justice, Petitioner,

vs.

HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the

1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of

the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge

Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the

Order dated December 20, 2001 allowing Juan Antonio Muñoz, private

respondent, to post bail; and (2) the Order dated April 10, 2002 denying the

motion to vacate the said Order of December 20, 2001 filed by the Government

of Hong Kong Special Administrative Region, represented by the Philippine

Department of Justice (DOJ), petitioner. The petition alleges that both Orders

were issued by respondent judge with grave abuse of discretion amounting to

lack or excess of jurisdiction as there is no provision in the Constitution

granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown

Colony of Hong Kong signed an "Agreement for the Surrender of Accused and

Convicted Persons." It took effect on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and

became the Hong Kong Special Administrative Region.

Private respondent Muñoz was charged before the Hong Kong Court with three

(3) counts of the offense of "accepting an advantage as agent," in violation of

Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong.

He also faces seven (7) counts of the offense of conspiracy to defraud,penalized by the common law of Hong Kong. On August 23, 1997 and October

25, 1999, warrants of arrest were issued against him. If convicted, he faces a

jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of

Justice a request for the provisional arrest of private respondent. The DOJ then

forwarded the request to the National Bureau of Investigation (NBI) which, in

turn, filed with the RTC of Manila, Branch 19 an application for the provisional

arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest

against private respondent. That same day, the NBI agents arrested and

detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a

petition for certiorari, prohibition andmandamus with application for

preliminary mandatory injunction and/or writ of habeas corpus questioning the

validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the

Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on

certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court

of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition o

the DOJ and sustaining the validity of the Order of Arrest against private

respondent. The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special

Administrative Region filed with the RTC of Manila a petition for the extraditi

of private respondent, docketed as Civil Case No. 99-95733, raffled off to

Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private

respondent filed, in the same case,- a petition for bail which was opposed bypetitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order

denying the petition for bail, holding that there is no Philippine law granting

bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hear

Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by

respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration o

the Order denying his application for bail. This was granted by respondent

judge in an Order dated December 20, 2001 allowing private respondent to

post bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civ

liberties. The petition for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that

accused hereby undertakes that he will appear and answer the

issues raised in these proceedings and will at all times hold himsel

amenable to orders and processes of this Court, will further appea

for judgment. If accused fails in this undertaking, the cash bond w

be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and

discretion of filing its own motion for hold departure order before

this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors

handling this case or if they so desire to the nearest office, at any

time and day of the week; and if they further desire, manifest

before this Court to require that all the assets of accused, real and

personal, be filed with this Court soonest, with the condition that

the accused flees from his undertaking, said assets be forfeited in

favor of the government and that the corresponding lien/annotati

be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the aboveOrder, but it was denied by respondent judge in his Order dated April 10, 200

Hence, the instant petition. Petitioner alleged that the trial court committed

grave abuse of discretion amounting to lack or excess of jurisdiction in

admitting private respondent to bail; that there is nothing in the Constitution

or statutory law providing that a potential extraditee has a right to bail, the

right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right

to bail guaranteed under the Bill of Rights extends to a prospective extraditee

and that extradition is a harsh process resulting in a prolonged deprivation of

one’s liberty.



101

Section 13, Article III of the Constitution provides that the right to bail shall not

be impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable

by reclusion perpetua when evidence of guilt is strong, shall, before conviction,

be bailable by sufficient sureties, or be released on recognizance as may be

provided by law. The right to bail shall not be impaired even when the privilege

of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction.

Nonetheless, this is not the first time that this Court has an occasion to resolve

the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G.

Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez,

a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate

Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional

provision on bail does not apply to extradition proceedings. It is "available only

in criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional

provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of

Court, applies only when a person has been arrested and detained for violation

of Philippine criminal laws. It does not apply to extradition proceedings

because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of

innocence in favor of every accused who should not be subjected to the loss of

freedom as thereafter he would be entitled to acquittal, unless his guilt be

proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6,

September 17, 1971, per Fernando, J., later CJ). It follows that the

constitutional provision on bail will not apply to a case like extradition, where

the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be

impaired even when the privilege of the writ of habeas corpus is suspended"

does not detract from the rule that the constitutional right to bail is available

only in criminal proceedings. It must be noted that the suspension of theprivilege of the writ of habeas corpusfinds application "only to persons

judicially charged for rebellion or offenses inherent in or directly connected

with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in

the constitutional provision on bail merely emphasizes the right to bail in

criminal proceedings for the aforementioned offenses. It cannot be taken to

mean that the right is available even in extradition proceedings that are not

criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case.

However, this Court cannot ignore the following trends in international law: (1)

the growing importance of the individual person in public international law

who, in the 20th century, has gradually attained global recognition; (2) the

higher value now being given to human rights in the international sphere; (3)

the corresponding duty of countries to observe these universal human rights in

fulfilling their treaty obligations; and (4) the duty of this Court to balance the

rights of the individual under our fundamental law, on one hand, and the law

on extradition, on the other.

The modern trend in public international law is the primacy placed on theworth of the individual person and the sanctity of human rights. Slowly, the

recognition that the individual person may properly be a subject of

international law is now taking root. The vulnerable doctrine that the subjects

of international law are limited only to states was dramatically eroded towards

the second half of the past century. For one, the Nuremberg and Tokyo trials

after World War II resulted in the unprecedented spectacle of individual

defendants for acts characterized as violations of the laws of war, crimes

against peace, and crimes against humanity. Recently, under the Nuremberg

principle, Serbian leaders have been persecuted for war crimes and crimes

against humanity committed in the former Yugoslavia. These significant events

show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international

organizations and states gave recognition and importance to human rights.

Thus, on December 10, 1948, the United Nations General Assembly adopted

the Universal Declaration of Human Rights in which the right to life, liberty an

all the other fundamental rights of every person were proclaimed. While not

treaty, the principles contained in the said Declaration are now recognized customarily binding upon the members of the international community. Th

in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective

deportee, held that under the Constitution,3 the principles set forth in that

Declaration are part of the law of the land. In 1966, the UN General Assembly

also adopted the International Covenant on Civil and Political Rights which th

Philippines signed and ratified. Fundamental among the rights enshrined

therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations,

committed to uphold the fundamental human rights as well as value the wort

and dignity of every person. This commitment is enshrined in Section II, Artic

II of our Constitution which provides: "The State values the dignity of every

human person and guarantees full respect for human rights." The Philippines

therefore, has the responsibility of protecting and promoting the right of eve

person to liberty and due process, ensuring that those detained or arrested ca

participate in the proceedings before a court, to enable it to decide without

delay on the legality of the detention and order their release if justified. In

other words, the Philippine authorities are under obligation to make available

to every person under detention such remedies which safeguard theirfundamental right to liberty. These remedies include the right to be admitted

to bail. While this Court in Purganan limited the exercise of the right to bail t

criminal proceedings, however, in light of the various international treaties

giving recognition and protection to human rights, particularly the right to life

and liberty, a reexamination of this Court’s ruling in Purganan is in order.

First , we note that the exercise of the State’s power to deprive an

individual of his liberty is not necessarily limited to criminal

proceedings. Respondents in administrative proceedings, such as

deportation and quarantine,4 have likewise been detained.

Second , to limit bail to criminal proceedings would be to close our

eyes to our jurisprudential history. Philippine jurisprudence has no

limited the exercise of the right to bail to criminal proceedings onl

This Court has admitted to bail persons who are not involved in

criminal proceedings. In fact, bail has been allowed in this

jurisdiction to persons in detention during the pendency of

administrative proceedings, taking into cognizance the obligation

the Philippines under international conventions to uphold human

rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing

deportation for failure to secure the necessary certificate of registration was

granted bail pending his appeal. After noting that the prospective deportee h

committed no crime, the Court opined that "To refuse him bail is to treat him

as a person who has committed the most serious crime known to law;" and

that while deportation is not a criminal proceeding, some of the machinery

used "is the machinery of criminal law." Thus, the provisions relating to bail

was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of

Immigration,7 this Court ruled that foreign nationals against whom no formal

criminal charges have been filed may be released on bail pending the finality

an order of deportation. As previously stated, the Court in Mejoff relied upon

the Universal declaration of Human Rights in sustaining the detainee’s right t

bail.

If bail can be granted in deportation cases, we see no justification why it shou

not also be allowed in extradition cases. Likewise, considering that the

Universal Declaration of Human Rights applies to deportation cases, there is

reason why it cannot be invoked in extradition cases. After all, both are

administrative proceedings where the innocence or guilt of the person

detained is not in issue.

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102

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction

must be viewed in the light of the various treaty obligations of the Philippines

concerning respect for the promotion and protection of human rights. Under

these treaties, the presumption lies in favor of human liberty. Thus, the

Philippines should see to it that the right to liberty of every individual is not

impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition

Law) defines "extradition" as "the removal of an accused from the Philippineswith the object of placing him at the disposal of foreign authorities to enable

the requesting state or government to hold him in connection with any criminal

investigation directed against him or the execution of a penalty imposed on

him under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created

by treaty, to demand the surrender of one accused or convicted of a crime

within its territorial jurisdiction, and the correlative duty of the other state to

surrender him to the demanding state.8 It is not a criminal proceeding.

9 Even if

the potential extraditee is a criminal, an extradition proceeding is not by its

nature criminal, for it is not punishment for a crime, even though such

punishment may follow extradition.10

It is sui generis, tracing its existence

wholly to treaty obligations between different nations.11

It is not a trial todetermine the guilt or innocence of the potential extraditee.12

Nor is it a full-

blown civil action, but one that is merely administrative in character.13 Its

object is to prevent the escape of a person accused or convicted of a crime and

to secure his return to the state from which he fled, for the purpose of trial or

punishment.14

But while extradition is not a criminal proceeding, it is characterized by the

following: (a) it entails a deprivation of liberty on the part of the potential

extraditee and (b) the means employed to attain the purpose of extradition isalso "the machinery of criminal law." This is shown by Section 6 of P.D. No.

1069 (The Philippine Extradition Law) which mandates the "immediate arrestand temporary detention of the accused" if such "will best serve the interest

of justice." We further note that Section 20 allows the requesting state "in case

of urgency" to ask for the "provisional arrest of the accused, pending receiptof the request for extradition;" and that release from provisional arrest "shall

not prejudice re-arrest and extradition of the accused if a request for

extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all

earmarks of a criminal process. A potential extraditee may be subjected toarrest, to a prolonged restraint of liberty, and forced to transfer to thedemanding state following the proceedings. "Temporary detention" may be a

necessary step in the process of extradition, but the length of time of the

detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999,

and remained incarcerated until December 20, 2001, when the trial court

ordered his admission to bail. In other words, he had been detained for overtwo (2) years without having been convicted of any crime. By any standard,

such an extended period of detention is a serious deprivation of his

fundamental right to liberty. In fact, it was this prolonged deprivation of liberty

which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an

extraditee, however, there is no provision prohibiting him or her from filing a

motion for bail, a right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as

that in criminal proceedings. In the latter, the standard of due process is

premised on the presumption of innocence of the accused.

As Purganancorrectly points out, it is from this major premise that the ancillary

presumption in favor of admitting to bail arises. Bearing in mind the purpose of

extradition proceedings, the premise behind the issuance of the arrest warrant

and the "temporary detention" is the possibility of flight of the potential

extraditee. This is based on the assumption that such extraditee is a fugitive

from justice.15

Given the foregoing, the prospective extraditee thus bears

the onus probandi of showing that he or she is not a flight risk and should be

granted bail.

The time-honored principle of pacta sunt servanda demands that the

Philippines honor its obligations under the Extradition Treaty it entered into

with the Hong Kong Special Administrative Region. Failure to comply with the

obligations is a setback in our foreign relations and defeats the purpose of

extradition. However, it does not necessarily mean that in keeping with its

treaty obligations, the Philippines should diminish a potential extraditee’srights to life, liberty, and due process. More so, where these rights are

guaranteed, not only by our Constitution, but also by international

conventions, to which the Philippines is a party. We should not, therefore,

deprive an extraditee of his right to apply for bail, provided that a certain

standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in

granting or denying bail can neither be the proof beyond reasonable doubt in

criminal cases nor the standard of proof of preponderance of evidence in civi

cases. While administrative in character, the standard of substantial evidence

used in administrative cases cannot likewise apply given the object of

extradition law which is to prevent the prospective extraditee from fleeing ou

jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now

Chief Justice Reynato S. Puno, proposed that a new standard which he termed

"clear and convincing evidence" should be used in granting bail in extraditiocases. According to him, this standard should be lower than proof beyond

reasonable doubt but higher than preponderance of evidence. The potential

extraditee must prove by "clear and convincing evidence" that he is not a flig

risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence

show that he is not a flight risk. Consequently, this case should be remanded

the trial court to determine whether private respondent may be granted bail

on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial

court to determine whether private respondent is entitled to bail on the basi

of "clear and convincing evidence." If not, the trial court should order the

cancellation of his bail bond and his immediate detention; and thereafter,

conduct the extradition proceedings with dispatch.

SO ORDERED.




































55

G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.

CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DEGUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR IIIENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICECOMMISSION, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government

employee who was charged administratively and eventually dismissed from the

service. The employee’s personal files stored in the computer were used by the

government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to

reverse and set aside the Decision1dated October 11, 2007 and

Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA

dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner

Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil ServiceCommission (CSC) which found him guilty of dishonesty, grave misconduct,

conduct prejudicial to the best interest of the service, and violation of Republic

Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional

Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison

Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of

the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint

addressed to respondent CSC Chairperson Karina Constantino-David which was

marked "Confidential" and sent through a courier service (LBC) from a certain"Alan San Pascual" of Bagong Silang, Caloocan City, was received by the

Integrated Records Management Office (IRMO) at the CSC Central Office.

Following office practice in which documents marked "Confidential" are left

unopened and instead sent to the addressee, the aforesaid letter was given

directly to Chairperson David.

The letter-complaint reads:

The Chairwoman

Civil Service Commission

Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you

personally if it is just alright for an employee of your agency to be a lawyer of

an accused gov’t employee having a pending case in the csc. I honestly think

this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the

region 4 office. He is the chief of the Mamamayan muna hindi mamaya na

division. He have been helping many who have pending cases in the Csc. The

justice in our govt system will not be served if this will continue. Please

investigate this anomaly because our perception of your clean and good office

is being tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with

background in information technology (IT), and issued a memo directing them

to conduct an investigation and specifically "to back up all the files in the

computers found in the Mamamayan Muna (PALD) and Legal divisions. "4Afte

some briefing, the team proceeded at once to the CSC-ROIV office at Panay

Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team

informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo

(Director Castillo) and Director III Engelbert Unite (Director Unite) of

Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Lega

Services Division (LSD) was witnessed by several employees, together with

Directors Castillo and Unite who closely monitored said activity. At around 6:

p.m., Director Unite sent text messages to petitioner and the head of LSD, wh

were both out of the office at the time, informing them of the ongoing copyin

of computer files in their divisions upon orders of the CSC Chair. The text

messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs

PALD and LSD per instruction of the Chairman. If you can make it

here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of thechair."

"CO IT people arrived just now for this purpose. We were not also

informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "i

send a copy of the memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to

Director Unite and that he will just get a lawyer. Another text message receiv

by petitioner from PALD staff also reported the presence of the team from CS

main office: "Sir may mga taga C.O. daw sa kuarto natin. "6

At around 10:00p.m. of the same day, the investigating team finished their task. The next day

all the computers in the PALD were sealed and secured for the purpose of

preserving all the files stored therein. Several diskettes containing the back-u

files sourced from the hard disk of PALD and LSD computers were turned ove

to Chairperson David. The contents of the diskettes were examined by the

CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 1

diskettes containing files copied from the computer assigned to and being us

by the petitioner, numbering about 40 to 42 documents, were draft pleading

or letters7 in connection with administrative cases in the CSC and other

tribunals. On the basis of this finding, Chairperson David issued the Show-Cau

Order8 dated January 11, 2007, requiring the petitioner, who had gone on

extended leave, to submit his explanation or counter-affidavit within five day

from notice.

Evaluating the subject documents obtained from petitioner’s personal files,Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are

related to or connected with administrative cases that may broadly be lumpe

as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office o

other tribunals. It is also of note that most of these draft pleadings are for and

on behalves of parties, who are facing charges as respondents in administrat

cases. This gives rise to the inference that the one who prepared them was

knowingly, deliberately and willfully aiding and advancing interests adverse a

inimical to the interest of the CSC as the central personnel agency of the

government tasked to discipline misfeasance and malfeasance in the

government service. The number of pleadings so prepared further

demonstrates that such person is not merely engaged in an isolated practice

but pursues it with seeming regularity. It would also be the height of naivete o

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56

credulity, and certainly against common human experience, to believe that the

person concerned had engaged in this customary practice without any

consideration, and in fact, one of the retrieved files (item 13 above) appears to

insinuate the collection of fees. That these draft pleadings were obtained from

the computer assigned to Pollo invariably raises the presumption that he was

the one responsible or had a hand in their drafting or preparation since the

computer of origin was within his direct control and disposition.9

Petitioner filed his Comment, denying that he is the person referred to in theanonymous letter-complaint which had no attachments to it, because he is not

a lawyer and neither is he "lawyering" for people with cases in the CSC. He

accused CSC officials of conducting a "fishing expedition" when they unlawfully

copied and printed personal files in his computer, and subsequently asking him

to submit his comment which violated his right against self-incrimination. He

asserted that he had protested the unlawful taking of his computer done while

he was on leave, citing the letter dated January 8, 2007 in which he informed

Director Castillo that the files in his computer were his personal files and those

of his sister, relatives, friends and some associates and that he is not

authorizing their sealing, copying, duplicating and printing as these would

violate his constitutional right to privacy and protection against self-

incrimination and warrantless search and seizure. He pointed out that though

government property, the temporary use and ownership of the computer

issued under a Memorandum of Receipt (MR) is ceded to the employee who

may exercise all attributes of ownership, including its use for personal

purposes. As to the anonymous letter, petitioner argued that it is notactionable as it failed to comply with the requirements of a formal complaint

under the Uniform Rules on Administrative Cases in the Civil Service (URACC).

In view of the illegal search, the files/documents copied from his computer

without his consent is thus inadmissible as evidence, being "fruits of a

poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211

finding prima

facie case against the petitioner and charging him with Dishonesty, Grave

Misconduct, Conduct Prejudicial to the Best Interest of the Service and

Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public

Officials and Employees). Petitioner was directed to submit his answer under

oath within five days from notice and indicate whether he elects a formal

investigation. Since the charges fall under Section 19 of the URACC, petitioner

was likewise placed under 90 days preventive suspension effective immediately

upon receipt of the resolution. Petitioner received a copy of Resolution No.070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to

Defer) assailing the formal charge as without basis having proceeded from an

illegal search which is beyond the authority of the CSC Chairman, such power

pertaining solely to the court. Petitioner reiterated that he never aided any

people with pending cases at the CSC and alleged that those files found in his

computer were prepared not by him but by certain persons whom he

permitted, at one time or another, to make use of his computer out of close

association or friendship. Attached to the motion were the affidavit of Atty.

Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU

and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested

that petitioner had nothing to do with the pleadings or bill for legal fees

because in truth he owed legal fees to Atty. Solosa and not to petitioner.

Petitioner contended that the case should be deferred in view of the prejudicialquestion raised in the criminal complaint he filed before the Ombudsman

against Director Buensalida, whom petitioner believes had instigated this

administrative case. He also prayed for the lifting of the preventive suspension

imposed on him. In its Resolution No. 07051912

dated March 19, 2007, the CSC

denied the omnibus motion. The CSC resolved to treat the said motion as

petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13

under Rule 65 of the

Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January

11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26,

2007 as having been issued with grave abuse of discretion amounting to excess

or total absence of jurisdiction. Prior to this, however, petitioner lodged an

administrative/criminal complaint against respondents Directors Racquel D.G.

Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo

(CSC-RO IV) before the Office of the Ombudsman, and a separate complaint f

disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC settin

the formal investigation of the case on April 30, 2007. On April 25, 2007, he

filed in the CA an Urgent Motion for the issuance of TRO and preliminary

injunction.15

Since he failed to attend the pre-hearing conference scheduled o

April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the

failure of petitioner and/or his counsel to appear in the said pre-hearingconference shall entitle the prosecution to proceed with the formal

investigation ex-parte.16

Petitioner moved to defer or to reset the pre-hearing

conference, claiming that the investigation proceedings should be held in

abeyance pending the resolution of his petition by the CA. The CSC denied his

request and again scheduled the pre-hearing conference on May 18, 2007 wit

similar warning on the consequences of petitioner and/or his counsel’s non-

appearance.17

This prompted petitioner to file another motion in the CA, to c

the respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419

denying petitioner

motion to set aside the denial of his motion to defer the proceedings and to

inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing

officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion ofthe prosecution, petitioner was deemed to have waived his right to the form

investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20

the dispositive par

of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds

Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct

Conduct Prejudicial to the Best Interest of the Service and Violation of Repub

Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all it

accessory penalties, namely, disqualification to hold public office, forfeiture o

retirement benefits, cancellation of civil service eligibilities and bar from takin

future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioner

computer, the CSC noted the dearth of jurisprudence relevant to the factual

milieu of this case where the government as employer invades the private file

of an employee stored in the computer assigned to him for his official use, in

the course of initial investigation of possible misconduct committed by said

employee and without the latter’s consent or participation. The CSC thus

turned to relevant rulings of the United States Supreme Court, and cited the

leading case of O’Connor v. Ortega22

as authority for the view that governme

agencies, in their capacity as employers, rather than law enforcers, could

validly conduct search and seizure in the governmental workplace without

meeting the "probable cause" or warrant requirement for search and seizure

Another ruling cited by the CSC is the more recent case of United States v.

Mark L. Simons23

which declared that the federal agency’s computer use polic

foreclosed any inference of reasonable expectation of privacy on the part of i

employees. Though the Court therein recognized that such policy did not, at

the same time, erode the respondent’s legitimate expectation of privacy in thoffice in which the computer was installed, still, the warrantless search of the

employee’s office was upheld as valid because a government employer is

entitled to conduct a warrantless search pursuant to an investigation of work

related misconduct provided the search is reasonable in its inception and

scope.

With the foregoing American jurisprudence as benchmark, the CSC held that

petitioner has no reasonable expectation of privacy with regard to the

computer he was using in the regional office in view of the CSC computer use

policy which unequivocally declared that a CSC employee cannot assert any

privacy right to a computer assigned to him. Even assuming that there was no

such administrative policy, the CSC was of the view that the search of

petitioner’s computer successfully passed the test of reasonableness for

warrantless searches in the workplace as enunciated in the aforecited































































57

authorities. The CSC stressed that it pursued the search in its capacity as

government employer and that it was undertaken in connection with an

investigation involving work-related misconduct, which exempts it from the

warrant requirement under the Constitution. With the matter of admissibility

of the evidence having been resolved, the CSC then ruled that the totality of

evidence adequately supports the charges of grave misconduct, dishonesty,

conduct prejudicial to the best interest of the service and violation of R.A. No.

6713 against the petitioner. These grave infractions justified petitioner’s

dismissal from the service with all its accessory penalties.

In his Memorandum24

filed in the CA, petitioner moved to incorporate the

above resolution dismissing him from the service in his main petition, in lieu of

the filing of an appeal via a Rule 43 petition. In a subsequent motion, he

likewise prayed for the inclusion of Resolution No. 07180025

which denied his

motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari

after finding no grave abuse of discretion committed by respondents CSC

officials. The CA held that: (1) petitioner was not charged on the basis of the

anonymous letter but from the initiative of the CSC after a fact-finding

investigation was conducted and the results thereof yielded a prima facie case

against him; (2) it could not be said that in ordering the back-up of files in

petitioner’s computer and later confiscating the same, Chairperson David had

encroached on the authority of a judge in view of the CSC computer policy

declaring the computers as government property and that employee-users

thereof have no reasonable expectation of privacy in anything they create,

store, send, or receive on the computer system; and (3) there is nothing

contemptuous in CSC’s act of proceeding with the formal investigation as there

was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner

brought this appeal arguing that –

I

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND

COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW

AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED

THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY

PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC

RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE

ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED

PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS

RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE,

AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE

MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM

SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT

BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY

MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED

BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL

AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH

DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE

EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE

OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF

DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL

HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN

THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES

INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS

PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUS

ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTU

OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS

OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987

PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER AL

OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO

SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE

ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC

RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC

RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT

RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE

ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on hi

office computer and the copying of his personal files without his knowledge

and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a fac

of the right protected by the guarantee against unreasonable search and

seizure under Section 2, Article III of the 1987 Constitution,27

which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers,

and effects against unreasonable searches and seizures of whatever nature a

for any purpose shall be inviolable, and no search warrant or warrant of arres

shall issue except upon probable cause to be determined personally by the

judge after examination under oath or affirmation of the complainant and th

witnesses he may produce, and particularly describing the place to be search

and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures

but only of "unreasonable" searches and seizures.28

But to fully understand t

concept and application for the purpose of resolving the issue at hand, it isessential that we examine the doctrine in the light of pronouncements in

another jurisdiction. As the Court declared in People v. Marti29

:

Our present constitutional provision on the guarantee against unreasonable

search and seizure had its origin in the 1935 Charter which, worded as follow

"The right of the people to be secure in their persons, houses, papers and

effects against unreasonable searches and seizures shall not be violated, and

no warrants shall issue but upon probable cause, to be determined by the

judge after examination under oath or affirmation of the complainant and th

witnesses he may produce, and particularly describing the place to be

searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the

United States Constitution. As such, the Court may turn to the pronounceme

of the United States Federal Supreme Court and State Appellate Courts which

are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31

the US Supreme Court held that th

act of FBI agents in electronically recording a conversation made by petitione

in an enclosed public telephone booth violated his right to privacy and

constituted a "search and seizure". Because the petitioner had a reasonable

expectation of privacy in using the enclosed booth to make a personal

telephone call, the protection of the Fourth Amendment extends to such are

In the concurring opinion of Mr. Justice Harlan, it was further noted that the

existence of privacy right under prior decisions involved a two-fold

requirement: first, that a person has exhibited an actual (subjective)

expectation of privacy; and second, that the expectation be one that society

prepared to recognize as reasonable (objective).32






































58

In Mancusi v. DeForte33

which addressed the reasonable expectations of

private employees in the workplace, the US Supreme Court held that a union

employee had Fourth Amendment rights with regard to an office at union

headquarters that he shared with other union officials, even as the latter or

their guests could enter the office. The Court thus "recognized that employees

may have a reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was

addressed in the 1987 case of O’Connor v. Ortega

34

where a physician, Dr.Magno Ortega, who was employed by a state hospital, claimed a violation of

his Fourth Amendment rights when hospital officials investigating charges of

mismanagement of the psychiatric residency program, sexual harassment of

female hospital employees and other irregularities involving his private patients

under the state medical aid program, searched his office and seized personal

items from his desk and filing cabinets. In that case, the Court categorically

declared that "[i]ndividuals do not lose Fourth Amendment rights merely

because they work for the government instead of a private employer."35

A

plurality of four Justices concurred that the correct analysis has two steps: first,

because "some government offices may be so open to fellow employees or the

public that no expectation of privacy is reasonable", a court must consider

"[t]he operational realities of the workplace" in order to determine whether an

employee’s Fourth Amendment rights are implicated; and next, where an

employee has a legitimate privacy expectation, an employer’s intrusion on that

expectation "for noninvestigatory, work-related purposes, as well as for

investigations of work-related misconduct, should be judged by the standard ofreasonableness under all the circumstances."

36

On the matter of government employees’ reasonable expectations of privacy in

their workplace, O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file

cabinets, like similar expectations of employees in the private sector, may be

reduced by virtue of actual office practices and procedures, or by legitimate

regulation. x x x The employee’s expectation of privacy must be assessed in the

context of the employment relation. An office is seldom a private enclave free

from entry by supervisors, other employees, and business and personal

invitees. Instead, in many cases offices are continually entered by fellow

employees and other visitors during the workday for conferences,

consultations, and other work-related visits. Simply put, it is the nature of

government offices that others – such as fellow employees, supervisors,

consensual visitors, and the general public – may have frequent access to an

individual’s office. We agree with JUSTICE SCALIA that "*c+onstitutional

protection against unreasonable searches by the government does not

disappear merely because the government has the right to make reasonable

intrusions in its capacity as employer," x x x but some government offices maybe so open to fellow employees or the public that no expectation of privacy isreasonable. x x x Given the great variety of work environments in the publicsector, the question of whether an employee has a reasonable expectation ofprivacy must be addressed on a case-by-case basis.37

(Citations omitted;

emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court

declared that Dr. Ortega’s Fourth Amendment rights are implicated only if the

conduct of the hospital officials infringed "an expectation of privacy that

society is prepared to consider as reasonable." Given the undisputed evidencethat respondent Dr. Ortega did not share his desk or file cabinets with any

other employees, kept personal correspondence and other private items in his

own office while those work-related files (on physicians in residency training)

were stored outside his office, and there being no evidence that the hospital

had established any reasonable regulation or policy discouraging employees

from storing personal papers and effects in their desks or file cabinets

(although the absence of such a policy does not create any expectation of

privacy where it would not otherwise exist), the Court concluded that Dr.

Ortega has a reasonable expectation of privacy at least in his desk and file

cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital

officials was reasonable, the O’Connor plurality decision discussed the

following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in

his office, the Court of Appeals simply concluded without discussion that the

"search…was not a reasonable search under the fourth amendment." x x x "[t

hold that the Fourth Amendment applies to searches conducted by [public

employers] is only to begin the inquiry into the standards governing such

searches…*W+hat is reasonable depends on the context within which a search

takes place. x x x Thus, we must determine the appropriate standard of

reasonableness applicable to the search. A determination of the standard of

reasonableness applicable to a particular class of searches requires "balanc[i

the nature and quality of the intrusion on the individual’s Fourth Amendmen

interests against the importance of the governmental interests alleged to

justify the intrusion." x x x In the case of searches conducted by a publicemployer, we must balance the invasion of the employees’ legitimate

expectations of privacy against the government’s need for supervision,

control, and the efficient operation of the workplace.

x x x x

In our view, requiring an employer to obtain a warrant whenever the employ

wished to enter an employee’s office, desk, or file cabinets for a work-related

purpose would seriously disrupt the routine conduct of business and would b

unduly burdensome. Imposing unwieldy warrant procedures in such cases up

supervisors, who would otherwise have no reason to be familiar with such

procedures, is simply unreasonable. In contrast to other circumstances in wh

we have required warrants, supervisors in offices such as at the Hospital are

hardly in the business of investigating the violation of criminal laws. Rather,

work-related searches are merely incident to the primary business of the

agency. Under these circumstances, the imposition of a warrant requirement

would conflict with the "common-sense realization that government offices

could not function if every employment decision became a constitutional

matter." x x x

x x x x

The governmental interest justifying work-related intrusions by public

employers is the efficient and proper operation of the workplace. Governmen

agencies provide myriad services to the public, and the work of these agencie

would suffer if employers were required to have probable cause before they

entered an employee’s desk for the purpose of finding a file or piece of officecorrespondence. Indeed, it is difficult to give the concept of probable cause,

rooted as it is in the criminal investigatory context, much meaning when the

purpose of a search is to retrieve a file for work-related reasons. Similarly, the

concept of probable cause has little meaning for a routine inventory conduct

by public employers for the purpose of securing state property. x x x To ensur

the efficient and proper operation of the agency, therefore, public employers

must be given wide latitude to enter employee offices for work-related,

noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an

investigation of work-related employee misconduct. Even when employers

conduct an investigation, they have an interest substantially different from "t

normal need for law enforcement." x x x Public employers have an interest in

ensuring that their agencies operate in an effective and efficient manner, and

the work of these agencies inevitably suffers from the inefficiency,

incompetence, mismanagement, or other work-related misfeasance of its

employees. Indeed, in many cases, public employees are entrusted with

tremendous responsibility, and the consequences of their misconduct or

incompetence to both the agency and the public interest can be severe. In

contrast to law enforcement officials, therefore, public employers are not

enforcers of the criminal law; instead, public employers have a direct and

overriding interest in ensuring that the work of the agency is conducted in a

proper and efficient manner. In our view, therefore, a probable causerequirement for searches of the type at issue here would impose intolerablburdens on public employers. The delay in correcting the employeemisconduct caused by the need for probable cause rather than reasonablesuspicion will be translated into tangible and often irreparable damage to tagency’s work, and ultimately to the public interest. x x x

x x x x



























59

In sum, we conclude that the "special needs, beyond the normal need for lawenforcement make the…probable-cause requirement impracticable," x x x forlegitimate, work-related noninvestigatory intrusions as well as investigationsof work-related misconduct. A standard of reasonableness will neither unduly

burden the efforts of government employers to ensure the efficient and proper

operation of the workplace, nor authorize arbitrary intrusions upon the privacy

of public employees. We hold, therefore, that public employer intrusions onthe constitutionally protected privacy interests of government employees fornoninvestigatory, work-related purposes, as well as for investigations of

work-related misconduct,should be judged by the standard of reasonablenessunder all the circumstances. Under this reasonableness standard, both theinception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first,

one must consider ‘whether the…action was justified at its inception,’ x x x ;

second, one must determine whether the search as actually conducted ‘was

reasonably related in scope to the circumstances which justified the

interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified

at its inception" when there are reasonable grounds for suspecting that thesearch will turn up evidence that the employee is guilty of work-relatedmisconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will bepermissible in its scope when "the measures adopted are reasonably relatedto the objectives of the search and not excessively intrusive in light of …the

nature of the [misconduct]." x x x39

(Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the

factual dispute as to the character of the search and neither was there any

finding made as to the scope of the search that was undertaken, the case was

remanded to said court for the determination of the justification for the search

and seizure, and evaluation of the reasonableness of both the inception of the

search and its scope.

In O’Connor the Court recognized that "special needs" authorize warrantless

searches involving public employees for work-related reasons. The Court thus

laid down a balancing test under which government interests are weighed

against the employee’s reasonable expectation of privacy. This reasonablenesstest implicates neither probable cause nor the warrant requirement, which are

related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy

rights in the workplace. One of these cases involved a government employer’s

search of an office computer, United States v. Mark L. Simons41

where the

defendant Simons, an employee of a division of the Central Intelligence Agency

(CIA), was convicted of receiving and possessing materials containing child

pornography. Simons was provided with an office which he did not share with

anyone, and a computer with Internet access. The agency had instituted a

policy on computer use stating that employees were to use the Internet for

official government business only and that accessing unlawful material was

specifically prohibited. The policy also stated that users shall understand that

the agency will periodically audit, inspect, and/or monitor the user’s Internet

access as deemed appropriate. CIA agents instructed its contractor for the

management of the agency’s computer network, upon initial discovery of

prohibited internet activity originating from Simons’ computer, to conduct a

remote monitoring and examination of Simons’ computer. After confirming

that Simons had indeed downloaded pictures that were pornographic in

nature, all the files on the hard drive of Simon’s computer were copied from a

remote work station. Days later, the contractor’s representative finally entered

Simon’s office, removed the original hard drive on Simon’s computer, replaced

it with a copy, and gave the original to the agency security officer. Thereafter,

the agency secured warrants and searched Simons’ office in the evening when

Simons was not around. The search team copied the contents of Simons’

computer; computer diskettes found in Simons’ desk drawer; computer files

stored on the zip drive or on zip drive diskettes; videotapes; and various

documents, including personal correspondence. At his trial, Simons moved to

suppress these evidence, arguing that the searches of his office and computer

violated his Fourth Amendment rights. After a hearing, the district court deni

the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the

searches of Simons’ computer and office did not violate his Fourth Amendme

rights and the first search warrant was valid. It held that the search remains

valid under the O’Connor exception to the warrant requirement because

evidence of the crime was discovered in the course of an otherwise proper

administrative inspection. Simons’ violation of the agency’s Internet policyhappened also to be a violation of criminal law; this does not mean that said

employer lost the capacity and interests of an employer. The warrantless ent

into Simons’ office was reasonable under the Fourth Amendment standard

announced in O’Connor because at the inception of the search, the employer

had "reasonable grounds for suspecting" that the hard drive would yield

evidence of misconduct, as the employer was already aware that Simons had

misused his Internet access to download over a thousand pornographic imag

The retrieval of the hard drive was reasonably related to the objective of the

search, and the search was not excessively intrusive. Thus, while Simons had

reasonable expectation of privacy in his office, he did not have such legitimat

expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simo

must first prove that he had a legitimate expectation of privacy in the place

searched or the item seized. x x x And, in order to prove a legitimate

expectation of privacy, Simons must show that his subjective expectation of

privacy is one that society is prepared to accept as objectively reasonable. x x

x x x x

x x x We conclude that the remote searches of Simons’ computer did not

violate his Fourth Amendment rights because, in light of the Internet policy,

Simons lacked a legitimate expectation of privacy in the files downloaded fro

the Internet. Additionally, we conclude that Simons’ Fourth Amendment righ

were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to therecord or fruits of his Internet use in light of the FBIS Internet policy. Thepolicy clearly stated that FBIS would "audit, inspect, and/or monitor"

employees’ use of the Internet, including all file transfers, all websites visiteand all e-mail messages, "as deemed appropriate." x x x This policy placed

employees on notice that they could not reasonably expect that their Interne

activity would be private. Therefore, regardless of whether Simons subjective

believed that the files he transferred from the Internet were private, such a

belief was not objectively reasonable after FBIS notified him that it would be

overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely

searching and seizing the computer files Simons downloaded from the Intern

did not violate the Fourth Amendment.

x x x x

The burden is on Simons to prove that he had a legitimate expectation ofprivacy in his office. x x x Here, Simons has shown that he had an office that

did not share. As noted above, the operational realities of Simons’ workplace

may have diminished his legitimate privacy expectations. However, there is n

evidence in the record of any workplace practices, procedures, or regulations

that had such an effect. We therefore conclude that, on this record, Simonspossessed a legitimate expectation of privacy in his office.

x x x x

In the final analysis, this case involves an employee’s supervisor entering the

employee’s government office and retrieving a piece of government equipme

in which the employee had absolutely no expectation of privacy – equipment

that the employer knew contained evidence of crimes committed by the

employee in the employee’s office. This situation may be contrasted with one

in which the criminal acts of a government employee were unrelated to his

employment. Here, there was a conjunction of the conduct that violated the














60

employer’s policy and the conduct that violated the criminal law. We consider

that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in which

a reasonable employer might engage. x x x42

(Citations omitted; emphasis

supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43

which

involved the constitutionality of a provision in R.A. No. 9165 requiring

mandatory drug testing of candidates for public office, students of secondary

and tertiary schools, officers and employees of public and private offices, andpersons charged before the prosecutor’s office with certain offenses, have also

recognized the fact that there may be such legitimate intrusion of privacy in the

workplace.

The first factor to consider in the matter of reasonableness is the nature of the

privacy interest upon which the drug testing, which effects a search within the

meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or

workplace serves as the backdrop for the analysis of the privacy expectation of

the employees and the reasonableness of drug testing requirement. The

employees’ privacy interest in an office is to a large extent circumscribed by the

company’s work policies, the collective bargaining agreement, if any, entered

into by management and the bargaining unit, and the inherent right of the

employer to maintain discipline and efficiency in the workplace. Their privacy

expectation in a regulated office environment is, in fine, reduced; and a degree

of impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the

case at bar, we now address the following questions: (1) Did petitioner have a

reasonable expectation of privacy in his office and computer files?; and (2) Was

the search authorized by the CSC Chair, the copying of the contents of the hard

drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1)

the employee’s relationship to the item seized; (2) whether the item was in the

immediate control of the employee when it was seized; and (3) whether the

employee took actions to maintain his privacy in the item." These factors are

relevant to both the subjective and objective prongs of the reasonableness

inquiry, and we consider the two questions together.44

Thus, where the

employee used a password on his computer, did not share his office with co-

workers and kept the same locked, he had a legitimate expectation of privacyand any search of that space and items located therein must comply with the

Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an

actual (subjective) expectation of privacy either in his office or government-

issued computer which contained his personal files. Petitioner did not allege

that he had a separate enclosed office which he did not share with anyone, or

that his office was always locked and not open to other employees or visitors.

Neither did he allege that he used passwords or adopted any means to prevent

other employees from accessing his computer files. On the contrary, he

submits that being in the public assistance office of the CSC-ROIV, he normally

would have visitors in his office like friends, associates and even unknown

people, whom he even allowed to use his computer which to him seemed a

trivial request. He described his office as "full of people, his friends, unknown

people" and that in the past 22 years he had been discharging his functions at

the PALD, he is "personally assisting incoming clients, receiving documents,

drafting cases on appeals, in charge of accomplishment report, Mamamayan

Muna Program, Public Sector Unionism, Correction of name, accreditation of

service, and hardly had anytime for himself alone, that in fact he stays in the

office as a paying customer."46

Under this scenario, it can hardly be deduced

that petitioner had such expectation of privacy that society would recognize as

reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of

the aforementioned factual circumstances, that petitioner had at least a

subjective expectation of privacy in his computer as he claims, such is negated

by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly

provides:

POLICY

1. The Computer Resources are the property of the Civil Service

Commission and may be used only for legitimate business purpos

2. Users shall be permitted access to Computer Resources to assist

them in the performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoke

at any given time.

x x x x

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the

Commission shall not have an expectation of privacy in anything

they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placeme

shall select and assign Users to handle the confidential examinatio

data and processes.

5. Waiver of privacy rights. Users expressly waive any right to

privacy in anything they create, store, send, or receive on the

computer through the Internet or any other computer

network. Users understand that theCSC may use human orautomated means to monitor the use of its Computer Resources

6. Non-exclusivity of Computer Resources. A computer resource

is not a personal property or for the exclusive use of a User to who

a memorandum of receipt (MR) has been issued. It can be shared

operated by other users. However, he is accountable therefor and

must insure its care and maintenance.

x x x x

Passwords

12. Responsibility for passwords. Users shall be responsible for

safeguarding their passwords for access to the computer system.

Individual passwords shall not be printed, stored online, or given t

others. Users shall be responsible for all transactions made using

their passwords. No User may access the computer system with

another User’s password or account.

13. Passwords do not imply privacy. Use of passwords to gain acce

to the computer system or to encode particular files or messages

does not imply that Users have an expectation of privacy in the

material they create or receive on the computer system. The Civil

Service Commission has global passwords that permit access to al

materials stored on its networked computer system regardless of

whether those materials have been encoded with a particular Use

password. Only members of the Commission shall authorize the

application of the said global passwords.

x x x x47

(Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notic

that they have no expectation of privacy in anything they create, store, send

receive on the office computers, and that the CSC may monitor the use of the



























61

computer resources using both automated or human means. This implies that

on-the-spot inspections may be done to ensure that the computer resources

were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining

whether an employee’s expectation of privacy in the workplace is reasonable is

the existence of a workplace privacy policy.48

In one case, the US Court of

Appeals Eighth Circuit held that a state university employee has not shown that

he had a reasonable expectation of privacy in his computer files where theuniversity’s computer policy, the computer user is informed not to expect

privacy if the university has a legitimate reason to conduct a search. The user is

specifically told that computer files, including e-mail, can be searched when the

university is responding to a discovery request in the course of litigation.

Petitioner employee thus cannot claim a violation of Fourth Amendment rights

when university officials conducted a warrantless search of his computer for

work-related materials.49

As to the second point of inquiry on the reasonableness of the search

conducted on petitioner’s computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with

investigation of work-related misconduct prompted by an anonymous letter-

complaint addressed to Chairperson David regarding anomalies in the CSC-

ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division issupposedly "lawyering" for individuals with pending cases in the CSC.

Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text

messages from unknown sources adverting to certain anomalies in Civil Service

Commission Regional Office IV (CSCRO IV) such as, staff working in another

government agency, "selling" cases and aiding parties with pending cases, all

done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads

and details sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed

the persons and divisions involved in the alleged irregularities happening inCSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening

in CSCRO IV and its effect on the integrity of the Commission, I decided to form

a team of Central Office staff to back up the files in the computers of the Public

Assistance and Liaison Division (PALD) and Legal Division;

x x x x50

A search by a government employer of an employee’s office is justified at

inception when there are reasonable grounds for suspecting that it will turn up

evidence that the employee is guilty of work-related misconduct.51

Thus, in the

2004 case decided by the US Court of Appeals Eighth Circuit, it was held that

where a government agency’s computer use policy prohibited electronic

messages with pornographic content and in addition expressly provided that

employees do not have any personal privacy rights regarding their use of the

agency information systems and technology, the government employee had no

legitimate expectation of privacy as to the use and contents of his office

computer, and therefore evidence found during warrantless search of the

computer was admissible in prosecution for child pornography. In that case,

the defendant employee’s computer hard drive was first remotely examined by

a computer information technician after his supervisor received complaints

that he was inaccessible and had copied and distributed non-work-related e-

mail messages throughout the office. When the supervisor confirmed that

defendant had used his computer to access the prohibited websites, in

contravention of the express policy of the agency, his computer tower and

floppy disks were taken and examined. A formal administrative investigation

ensued and later search warrants were secured by the police department. The

initial remote search of the hard drive of petitioner’s computer, as well as the

subsequent warrantless searches was held as valid under the O’Connor ruling

that a public employer can investigate work-related misconduct so long as an

search is justified at inception and is reasonably related in scope to the

circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer wa

justified at its inception and scope. We quote with approval the CSC’s

discussion on the reasonableness of its actions, consistent as it were with the

guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, the

is no doubt in the mind of the Commission that the search of Pollo’s compute

has successfully passed the test of reasonableness for warrantless searches in

the workplace as enunciated in the above-discussed American authorities. It

bears emphasis that the Commission pursued the search in its capacity as agovernment employer and that it was undertaken in connection with aninvestigation involving a work-related misconduct, one of the circumstances

exempted from the warrant requirement. At the inception of the search, a

complaint was received recounting that a certain division chief in the CSCRO

No. IV was "lawyering" for parties having pending cases with the said regiona

office or in the Commission. The nature of the imputation was serious, as itwas grievously disturbing. If, indeed, a CSC employee was found to be furtive

engaged in the practice of "lawyering" for parties with pending cases before

the Commission would be a highly repugnant scenario, then such a case wou

have shattering repercussions. It would undeniably cast clouds of doubt upon

the institutional integrity of the Commission as a quasi-judicial agency, and in

the process, render it less effective in fulfilling its mandate as an impartial an

objective dispenser of administrative justice. It is settled that a court or an

administrative tribunal must not only be actually impartial but must be seen

be so, otherwise the general public would not have any trust and confidence

it.

Considering the damaging nature of the accusation, the Commission had toact fast, if only to arrest or limit any possible adverse consequence or fall-out

Thus, on the same date that the complaint was received, a search was

forthwith conducted involving the computer resources in the concerned

regional office. That it was the computers that were subjected to the searchwas justified since these furnished the easiest means for an employee toencode and store documents. Indeed, the computers would be a likely

starting point in ferreting out incriminating evidence. Concomitantly, theephemeral nature of computer files, that is, they could easily be destroyed a click of a button, necessitated drastic and immediate action. Pointedly, to

impose the need to comply with the probable cause requirement would

invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the

warrantless search in an open and transparent manner. Officials and some

employees of the regional office, who happened to be in the vicinity, were on

hand to observe the process until its completion. In addition, the respondent

himself was duly notified, through text messaging, of the search and the

concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on

computer assigned to Pollo was not, in any way, vitiated with

unconstitutionality. It was a reasonable exercise of the managerial prerogativ

of the Commission as an employer aimed at ensuring its operational

effectiveness and efficiency by going after the work-related misfeasance of it

employees. Consequently, the evidence derived from the questioned search

are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must

necessarily fail. His other argument invoking the privacy of communication an

correspondence under Section 3(1), Article III of the 1987 Constitution is also

untenable considering the recognition accorded to certain legitimate intrusio

into the privacy of employees in the government workplace under the

aforecited authorities. We likewise find no merit in his contention that

O’Connor and Simons are not relevant because the present case does not

involve a criminal offense like child pornography. As already mentioned, the

search of petitioner’s computer was justified there being reasonable ground



























62

suspecting that the files stored therein would yield incriminating evidence

relevant to the investigation being conducted by CSC as government employer

of such misconduct subject of the anonymous complaint. This situation clearly

falls under the exception to the warrantless requirement in administrative

searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint

against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of

Manila

54

involving a branch clerk (Atty. Morales) who was investigated on thebasis of an anonymous letter alleging that he was consuming his working hours

filing and attending to personal cases, using office supplies, equipment and

utilities. The OCA conducted a spot investigation aided by NBI agents. The team

was able to access Atty. Morales’ personal computer and print two documents

stored in its hard drive, which turned out to be two pleadings, one filed in the

CA and another in the RTC of Manila, both in the name of another lawyer. Atty.

Morales’ computer was seized and taken in custody of the OCA but was later

ordered released on his motion, but with order to the MISO to first retrieve the

files stored therein. The OCA disagreed with the report of the Investigating

Judge that there was no evidence to support the charge against Atty. Morales

as no one from the OCC personnel who were interviewed would give a

categorical and positive statement affirming the charges against Atty. Morales,

along with other court personnel also charged in the same case. The OCA

recommended that Atty. Morales should be found guilty of gross misconduct.

The Court En Banc held that while Atty. Morales may have fallen short of the

exacting standards required of every court employee, the Court cannot use theevidence obtained from his personal computer against him for it violated his

constitutional right against unreasonable searches and seizures. The Court

found no evidence to support the claim of OCA that they were able to obtain

the subject pleadings with the consent of Atty. Morales, as in fact the latter

immediately filed an administrative case against the persons who conducted

the spot investigation, questioning the validity of the investigation and

specifically invoking his constitutional right against unreasonable search and

seizure. And as there is no other evidence, apart from the pleadings, retrieved

from the unduly confiscated personal computer of Atty. Morales, to hold him

administratively liable, the Court had no choice but to dismiss the charges

against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the

former which involved a personal computer of a court employee, the computer

from which the personal files of herein petitioner were retrieved is agovernment-issued computer, hence government property the use of which

the CSC has absolute right to regulate and monitor. Such relationship of the

petitioner with the item seized (office computer) and other relevant factors

and circumstances under American Fourth Amendment jurisprudence, notably

the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish

that petitioner had a reasonable expectation of privacy in the office computer

assigned to him.

Having determined that the personal files copied from the office computer of

petitioner are admissible in the administrative case against him, we now

proceed to the issue of whether the CSC was correct in finding the petitioner

guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like

the CSC, are accorded not only respect but even finality if such findings aresupported by substantial evidence. Substantial evidence is such amount of

relevant evidence which a reasonable mind might accept as adequate to

support a conclusion, even if other equally reasonable minds might conceivably

opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of

drafts of legal pleadings and documents stored in his office computer, as well

as the sworn affidavits and testimonies of the witnesses it presented during the

formal investigation. According to the CSC, these documents were confirmed to

be similar or exactly the same content-wise with those on the case records of

some cases pending either with CSCRO No. IV, CSC-NCR or the Commission

Proper. There were also substantially similar copies of those pleadings filed

with the CA and duly furnished the Commission. Further, the CSC found the

explanation given by petitioner, to the effect that those files retrieved from his

computer hard drive actually belonged to his lawyer friends Estrellado and

Solosa whom he allowed the use of his computer for drafting their pleadings

the cases they handle, as implausible and doubtful under the circumstances.

We hold that the CSC’s factual finding regarding the authorship of the subjec

pleadings and misuse of the office computer is well-supported by the evidenc

on record, thus:

It is also striking to note that some of these documents were in the nature of

pleadings responding to the orders, decisions or resolutions of these offices odirectly in opposition to them such as a petition for certiorari or a motion for

reconsideration of CSC Resolution. This indicates that the author thereof

knowingly and willingly participated in the promotion or advancement of the

interests of parties contrary or antagonistic to the Commission. Worse, the

appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llad

Epal kulang ang bayad mo," lends plausibility to an inference that the

preparation or drafting of the legal pleadings was pursued with less than a

laudable motivation. Whoever was responsible for these documents was

simply doing the same for the money – a "legal mercenary" selling or purveyi

his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer

Pollo raises the presumption that he was the author thereof. This is because h

had a control of the said computer. More significantly, one of the witnesses,

Margarita Reyes, categorically testified seeing a written copy of one of the

pleadings found in the case records lying on the table of the respondent. This

was the Petition for Review in the case of Estrellado addressed to the Court o

Appeals. The said circumstances indubitably demonstrate that Pollo was

secretly undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to

believe that the documents were the personal files of some of his friends,

including one Attorney Ponciano Solosa, who incidentally served as his couns

of record during the formal investigation of this case. In fact, Atty. Solosa

himself executed a sworn affidavit to this effect. Unfortunately, this contenti

of the respondent was directly rebutted by the prosecution witness, Reyes,

who testified that during her entire stay in the PALD, she never saw Atty.

Solosa using the computer assigned to the respondent. Reyes more particula

stated that she worked in close proximity with Pollo and would have known if

Atty. Solosa, whom she personally knows, was using the computer in questio

Further, Atty. Solosa himself was never presented during the formal

investigation to confirm his sworn statement such that the same constitutes

self-serving evidence unworthy of weight and credence. The same is true wit

the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the

respondent, it evinces the fact that he was unlawfully authorizing private

persons to use the computer assigned to him for official purpose, not only on

but several times gauging by the number of pleadings, for ends not in

conformity with the interests of the Commission. He was, in effect, acting as

principal by indispensable cooperation…Or at the very least, he should be

responsible for serious misconduct for repeatedly allowing CSC resources, tha

is, the computer and the electricity, to be utilized for purposes other than wh

they were officially intended.

Further, the Commission cannot lend credence to the posturing of the

appellant that the line appearing in one of the documents, "Eric N. Estrellado

Epal kulang ang bayad mo," was a private joke between the person alluded to

therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of

anything more sinister. The same is too preposterous to be believed. Why

would such a statement appear in a legal pleading stored in the computer

assigned to the respondent, unless he had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertaine

an anonymous complaint since Section 8 of CSC Resolution No. 99-1936

(URACC) requires a verified complaint:

Rule II – Disciplinary Cases















63

SEC. 8. Complaint. - A complaint against a civil service official or employee shall

not be given due course unless it is in writing and subscribed and sworn to by

the complainant. However, in cases initiated by the proper discipliningauthority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth ormerit to the allegation therein or supported by documentary or direct

evidence, in which case the person complained of may be required to

comment.

x x x x

We need not belabor this point raised by petitioner. The administrative

complaint is deemed to have been initiated by the CSC itself when Chairperson

David, after a spot inspection and search of the files stored in the hard drive of

computers in the two divisions adverted to in the anonymous letter -- as part of

the disciplining authority’s own fact-finding investigation and information-

gathering -- found a prima facie case against the petitioner who was then

directed to file his comment. As this Court held in Civil Service Commission v.

Court of Appeals57

--

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and

Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a

complaint may be initiated against a civil service officer or employee by the

appropriate disciplining authority, even without being subscribed and sworn to.

Considering that the CSC, as the disciplining authority for Dumlao, filed the

complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the

same deserves scant consideration. The alleged infirmity due to the said

memorandum order having been issued solely by the CSC Chair and not the

Commission as a collegial body, upon which the dissent of Commissioner

Buenaflor is partly anchored, was already explained by Chairperson David in

her Reply to the Addendum to Commissioner Buenaflor’s previous memo

expressing his dissent to the actions and disposition of the Commission in this

case. According to Chairperson David, said memorandum order was in fact

exhaustively discussed, provision by provision in the January 23, 2002

Commission Meeting, attended by her and former Commissioners Erestain, Jr.

and Valmores. Hence, the Commission En Banc at the time saw no need toissue a Resolution for the purpose and further because the CUP being for

internal use of the Commission, the practice had been to issue a memorandum

order.58

Moreover, being an administrative rule that is merely internal in

nature, or which regulates only the personnel of the CSC and not the public,

the CUP need not be published prior to its effectivity .59

In fine, no error or grave abuse of discretion was committed by the CA in

affirming the CSC’s ruling that petitioner is guilty of grave misconduct,

dishonesty, conduct prejudicial to the best interest of the service, and violation

of R.A. No. 6713. The gravity of these offenses justified the imposition on

petitioner of the ultimate penalty of dismissal with all its accessory penalties,

pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The

Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the

Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

SEPARATE CONCURRING OPINION

CARPIO, J.:

I concur with the Court’s denial of the petition. However, I file this separate

opinion to (1) assert a statutory basis for the disposition of the case, and (2)

articulate the exception to the Civil Service Commission (CSC) office regulatio

denying expectation of privacy in the use of government computers.

First . The CSC’s computer use regulation, which opens to access for i nternal

scrutiny anything CSC employees "create, store, send, or receive in the

computer system," has a statutory basis under the Government Auditing Cod

of the Philippines. Section 4(2) of the Code mandates that " [g]overnment x xx property shall be x x xused solely for public purposes."

1 In short, any privat

use of a government property, like a government-owned computer, is

prohibited by law. Consequently, a government employee cannot expect any

privacy when he uses a government-owned computer because he knows he

cannot use the computer for any private purpose. The CSC regulation declar

a no-privacy expectation on the use of government-owned computers logica

follows from the statutory rule that government-owned property shall be use

"solely " for a public purpose.

Moreover, the statutory rule and the CSC regulation are consistent with the

constitutional treatment of a public office as a public trust.2 The statutory rul

and the CSC regulation also implement the State policies, as expressly provid

in the Constitution, of ensuring full disclosure of all government transactions

involving public interest,3maintaining honesty and integrity in the public

service, and preventing graft and corruption.4

Thus, in this jurisdiction, the constitutional guarantees of privacy and

reasonable search are unavailing against audit inspections or internal

investigations for misconduct, as here, of electronic data stored

in government-owned property such as computing, telecommunication, and

other devices issued to civil servants. These constitutional guarantees apply

only to searches of devices privately owned by government employees.

Second . The CSC office regulation denying CSC employees privacy expectation

in "anything they create, store, send, or receive in the computer

system,"5 although valid as to petitioner Briccio Pollo, is constitutionally infirm

insofar as the regulation excludes from its ambit the three CSC commissioner

solely by reason of their rank , and not by reason of the confidential nature of

the electronic data they generate.

Office regulations mandating no-privacy expectation such as the CSC regulati

in question cannot justify access to sensitive government information

traditionally recognized as confidential. Thus, insulated from the reach of suc

regulations are Presidential conversations, correspondences, or discussions

during closed-door Cabinet meetings, internal deliberations of the Supreme

Court and other collegiate courts, draft decisions of judges and justices,

executive sessions of either house of Congress, military and diplomatic secret

national security matters, documents relating to pre-prosecution investigatio

by law enforcement agencies and similar confidential matters.6 The privilege

confidentiality covering these classes of information, barring free access to

them, is grounded on the nature of the constitutional function of the public

officials involved, coupled with considerations of efficiency, safety and comity

interests since disclosure of confidential information jeopardizes decision-

making, endangers lives and undermines diplomatic dealings, as the case may

be.

The CSC, as the government’s "central personnel agency,"7 exercises quasi-

judicial functions in "[r]ender[ing] opinion and rulings on all personnel and

other Civil Service matters."8 The CSC’s internal deliberations on administrati

cases are comparable to the internal deliberations of collegial courts. Such

internal deliberations enjoy confidentiality and cannot be accessed on the

ground that an audio of the deliberations is stored in a government-owned

device. Likewise, draft decisions of CSC commissioners that are stored in

government-issued computers are confidential information.

By providing that "[u]sers except the Members of theCommission shall not have an expectation of privacy in anything they create,

store, send, or receive in the [government-owned] computer system," the CS

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64

information based, not on the sensitivity of content, but on the salary grade of

its author. Thus, a glaring exemption from the CSC’s own transparency

regulation is "anything x x x create[d], store[d], sen[t], or receive[d]" in the

commission’s computer system by the three CSC members. As the new category

is content-neutral and draws its confidentiality solely from the rank held by the

government official creating, storing, sending and receiving the data, the

exemption stands on its head the traditional grounding of confidentiality – the

sensitivity of content .

The constitutional infirmity of the exemption is worsened by the arbitrariness

of its rank-based classification. The three CSC commissioners, unlike the rest of

the lower ranked CSC employees, are excluded from the operation of the CSC’s

data transparency regulation solely because they are the CSC’s highest ranking

officers.9 This classification fails even the most lenient equal protection

analysis. It bears no reasonable connection with the CSC regulation’s avowed

purposes of "[1] [p]rotect[ing] confidential, proprietary information of the CSC

from theft or unauthorized disclosure to third parties; [2] [o]ptimiz[ing] the use

of the CSC’s *c+omputer *r]esources as what they are officially intended for; and

[3] [r]educ[ing] and possibly eliminat[ing] potential legal liability to employees

and third parties."10

The assumption upon which the classification rests – that

the CSC commissioners, unlike the rest of the CSC’s thousands of employees,

are incapable of violating these objectives – is plainly unfounded.

The only way by which the CSC commissioners, or for that matter, any of its

employees, can constitutionally take themselves out of the ambit of the CSC’s

no-privacy regulation is if they (1) invoke the doctrine of confidentiality of

information, and (2) prove that the information sought to be exempted indeed

falls under any of the classes of confidential information adverted to above (or

those comparable to them). Sensitivity of content, not rank, justifies enjoyment

of this very narrow constitutional privilege.

Accordingly, I vote to DENY the petition.

CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I render this concurring and dissenting opinion only to express my thoughts on

the constitutional right to privacy of communication and correspondence vis-à-

vis an office memorandum that apparently removed an employee’s

expectation of privacy in the workplace.

I

Indispensable to the position I take herein is an appreciation of the

development and different attributes of the right to privacy that has come to

be generally regarded today as among the valuable rights of the individual that

must be given Constitutional protection.

The 1890 publication in the Harvard Law Review of The Right to Privacy ,1 an

article of 28 pages co-written by former law classmates Samuel Warren and

Louis Brandeis, is often cited to have given birth to the recognition of the

constitutional right to privacy. The article was spawned by the emerging

growth of media and technology, with the co-authors particularly being

concerned by the production in 1884 by the Eastman Kodak Company of a

"snap camera" that enabled people to take candid pictures. Prior to 1884,

cameras had been expensive and heavy; they had to be set up and people

would have to pose to have their pictures taken. The snap camera expectedly

ignited the enthusiasm for amateur photography in thousands of people who

had previously not been able to afford a camera. This technological

development moved Warren and Brandeis to search for a legal right to protect

individual privacy.2 One of the significant assertions they made in their article

was the declaration that "the common law secures to each individual the right

of determining, ordinarily, to what extent his thoughts, sentiments, and

emotions shall be communicated to others,"3 said right being merely part of

individual’s right to be let alone.4

While some quarters do not easily concede that Warren and Brandeis

"invented" the right to privacy, mainly because a robust body of confidentiali

law protecting private information from disclosure existed throughout Anglo

American common law by 1890, critics have acknowledged that The Right to

Privacy charted a new path for American privacy law.

5

In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to

let alone in his dissent in Olmstead v. United States,6 viz:

"The protection guaranteed by the Amendments is much broader in scope. T

makers of our Constitution undertook to secure conditions favorable to the

pursuit of happiness. They recognized the significance of man’s spiritual natu

of his feelings, and of his intellect. They knew that only a part of the pain,

pleasure and satisfactions of life are to be found in material things. They soug

to protect Americans in their beliefs, their thoughts, their emotions and their

sensations. They conferred, as against the Government, the right to be let

alone the most comprehensive of rights, and the right most valued by civilize

men. To protect that right, every unjustifiable intrusion by the Government

upon the privacy of the individual, whatever the means employed, must be

deemed a violation of the Fourth Amendment. And the use, as evidence in acriminal proceeding, of facts ascertained by such intrusion must be deemed a

violation of the Fifth." [emphasis supplied]

In 1960, torts scholar William Prosser published in the California Law

Review7 his article Privacy based on his thorough review of the various

decisions of the United States courts and of the privacy laws. He observed the

that the "law of privacy comprises four distinct kinds of invasion of four

different interests of the plaintiff, which are tied together by the common

name, but otherwise have almost nothing in common except that each

represents an interference with the right of the plaintiff, in the phrase coined

by Judge Cooley, ‘to be let alone.’"8 He identified the four torts as: (a) the

intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (

the public disclosure of embarrassing private facts about the plaintiff; (c) the

publicity that places the plaintiff in a false light in the public eye; and (d) the

appropriation, for the defendant’s advantage, of the plaintiff’s name orlikeness.

9

With regard to the first tort of intrusion upon seclusion or solitude, or into

private affairs, Prosser posited that there was a remedy when a person

"intentionally intrudes, physically or otherwise, upon the solitude or seclusion

of another or his private affairs or concerns" in a manner that was "highly

offensive to a reasonable person."10

The second and third torts established

liability when the publicized matter was highly offensive to a reasonable pers

and was not a legitimate concern of the public – if it involved disclosure of

embarrassing private facts – or placed another before the public in a false

light.11

Lastly, the tort of appropriation afforded a relief when a person adopt

"to his own use or benefit the name or likeness of another."12

In the 1977 landmark ruling of Whalen v. Roe,13

the US Supreme Court

expanded the right to privacy by categorizing privacy claims into two, namelyinformational privacy, to refer to the interest in avoiding disclosure of person

matters; and decisional privacy, to refer to the interest in independence in

making certain kinds of important decisions.

All US Circuit Courts recognizing informational privacy have held that this righ

is not absolute and, therefore, they have balanced individuals’ informational

privacy interests against the State’s interest in acquiring or disclosing the

information.14

The majority of the US Circuit Courts have adopted some form

scrutiny that has required the Government to show a "substantial" interest fo

invading individuals’ right to confidentiality in their personal information, and

then to balance the State’s substantial interest in the disclosure as against th

individual’s interest in confidentiality.15

This balancing test was developed in

United States v. Westinghouse16

by using the following factors, to wit: (a) the

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65

potential for harm in any subsequent nonconsensual disclosure; (d) the injury

from disclosure to the relationship in which the record was generated; (e) the

adequacy of safeguards to prevent unauthorized disclosure; (f) the degree of

need for access; and (g) the presence of an express statutory mandate,

articulated public policy, or other recognizable public interest militating toward

access.17

Decisional privacy, on the other hand, evolved from decisions touching on

matters concerning speech, religion, personal relations, education and sexualpreferences. As early as 1923, the US Supreme Court recognized decisional

privacy in its majority opinion in Meyer v. Nebraska.18

The petitioner therein

was tried and convicted by a district court, and his conviction was affirmed by

the Supreme Court of the Nebraska, for teaching the subject of reading in the

German language to a ten-year old boy who had not attained and successfully

passed eighth grade.19

In reversing the judgment, Justice McReynolds of the US

Supreme Court pronounced that the liberty guaranteed by the Fourteenth

Amendment "denotes not merely freedom from bodily restraint, but also the

right of the individual to contract, to engage in any of the common occupations

of life, to acquire useful knowledge, to marry, establish a home and bring up

children, to worship God according to the dictates of his own conscience, and

generally to enjoy those privileges long recognized at common law as essential

to the orderly pursuit of happiness by free men." Justice McReynolds

elaborated thusly:

"Practically, education of the young is only possible in schools conducted by

especially qualified persons who devote themselves thereto. The calling always

has been regarded as useful and honorable, essential, indeed, to the public

welfare. Mere knowledge of the German language cannot reasonably be

regarded as harmful. Heretofore it has been commonly looked upon as helpful

and desirable. Plaintiff in error taught this language in school as part of his

occupation. His right thus to teach and the right of parents to engage him so to

instruct their children, we think, are within the liberty of the Amendment."

In Griswold v. Connecticut,20

the US Supreme Court resolved another decisional

privacy claim by striking down a statute that prohibited the use of

contraceptives by married couples. Justice Douglas, delivering the opinion,

declared:

"By Pierce v. Society of Sisters, supra, the right to educate one’s children as onechooses is made applicable to the States by the force of the First

and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is

given the right to study the German language in a private school. In other

words, the State may not, consistently with the spirit of the First Amendment,

contract the spectrum of available knowledge. The right of freedom of speech

and press includes not only the right to utter or to print, but the right to

distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S.

141, 143) and freedom of inquiry, freedom of thought, and freedom to teach

(see Wiemann v. Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the

entire university community. (Sweezy v. New Hampshire, 354 U.S. 234, 249-

250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112;Baggett v.

Bullitt, 377 U.S. 360, 369). Without those peripheral rights, the specific rights

would be less secure. And so we reaffirm the principle of the Pierce and

the Meyer cases.

x x x x

"The present case, then, concerns a relationship lying within the zone of

privacy created by several fundamental constitutional guarantees. And it

concerns a law which, in forbidding the use of contraceptives, rather than

regulating their manufacture or sale, seeks to achieve its goals by means having

a maximum destructive impact upon that relationship. Such a law cannot stand

in light of the familiar principle, so often applied by this Court, that a

governmental purpose to control or prevent activities constitutionally subject

to state regulation may not be achieved by means which sweep unnecessarily

broadly and thereby invade the area of protected freedoms. (NAACP v.

Alabama, 377 U.S. 288, 307). Would we allow the police to search the sacred

precincts of marital bedrooms for telltale signs of the use of contraceptives?

The very idea is repulsive to the notions of privacy surrounding the marriage

relationship."

One of the most controversial decisional privacy claims was dealt with in Roe

Wade,21

by which the US Supreme Court justified abortion in the United State

on the premise that:

"This right of privacy xxx is broad enough to encompass a woman’s decision

whether or not to terminate her pregnancy. The detriment that the State

would impose upon the pregnant woman by denying this choice altogether is

apparent. Specific and direct harm medically diagnosable even in early

pregnancy may be involved. Maternity, or additional offspring, may force upothe woman a distressful life and future. Psychological harm may be imminent

Mental and physical health may be taxed by child care. There is also the

distress, for all concerned, associated with the unwanted child, and there is t

problem of bringing a child into a family already unable, psychologically and

otherwise, to care for it. In other cases, as in this one, the additional difficulti

and continuing stigma of unwed motherhood may be involved. All these are

factors the woman and her responsible physician necessarily will consider in

consultation.

x x x x

"Although the results are divided, most of these courts have agreed that the

right of privacy, however based, is broad enough to cover the abortion

decision; that the right, nonetheless, is not absolute and is subject to some

limitations; and that at some point the state interests as to protection ofhealth, medical standards, and prenatal life, become dominant."

In the Philippines, we have upheld decisional privacy claims. For instance, in t

2003 case of Estrada v. Escritor,22

although the majority opinion dealt

extensively with the claim of religious freedom, a right explicitly provided by

the Constitution, Justice Bellosillo’s separate opinion was informative with

regard to the privacy aspect of the issue involved and, hence, stated:

"More than religious freedom, I look with partiality to the rights of due proce

and privacy. Law in general reflects a particular morality or ideology, and so I

would rather not foist upon the populace such criteria as "compelling state

interest," but more, the reasonably foreseeable specific connection between

an employee’s potentially embarrassing conduct and the efficiency of the

service. This is a fairly objective standard than the compelling interest standa

involved in religious freedom.

"Verily, if we are to remand the instant case to the Office of the Court

Administrator, we must also configure the rights of due process and privacy

into the equation. By doing so, we can make a difference not only for those

who object out of religious scruples but also for those who choose to live a

meaningful life even if it means sometimes breaking "oppressive" and

"antiquated" application of laws but are otherwise efficient and effective

workers. As is often said, when we have learned to reverence each individua

liberty as we do our tangible wealth, we then shall have our renaissance."

Relevantly, Article III, Section 3 of the 1987 Constitution embodies the

protection of the privacy of communication and correspondence, to wit:

Section 3. (1) The privacy of communication and correspondence shall beinviolable except upon lawful order of the court, or when public safety or ord

requires otherwise as prescribed by law.

x x x x

Yet, the guarantee in favor of the privacy of communication and

correspondence is not absolute, for it expressly allows intrusion either upo

lawful order of a court or when public safety and order so demands (even

without a court order).23

In its 1965 ruling in Griswold v. Connecticut ,24

the US Supreme Court declared

that the right to privacy was a fundamental personal right; and that the

enumeration in the Constitution of certain rights should not be construed as a













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66

denial or disparagement of others that have been retained by the

people,25

considering that the "specific guarantees in the Bill of Rights had

penumbras, formed by emanations from those guarantees that helped give

them life and substance." Accordingly, an individual’s right to privacy of

communication and correspondence cannot, as a general rule, be denied

without violating the basic principles of liberty and justice.

The constitutional right to privacy in its Philippine context was first recognized

in the 1968 ruling of Morfe v. Mutuc,

26

where the Court affirmed that:

"The right to privacy as such is accorded recognition independently of its

identification with liberty; in itself, it is fully deserving of constitutional

protection. The language of Prof. Emerson is particularly apt: "The concept of

limited government has always included the idea that governmental powers

stop short of certain intrusions into the personal life of the citizen. This is

indeed one of the basic distinctions between absolute and limited government.

Ultimate and pervasive control of the individual, in all aspects of his life, is the

hallmark of the absolute state. In contrast, a system of limited government,

safeguards a private sector, which belongs to the individual, firmly

distinguishing it from the public sector, which the state can control. Protection

of this private sector — protection, in other words, of the dignity and integrity

of the individual — has become increasingly important as modern society has

developed. All the forces of a technological age — industrialization,

urbanization, and organization — operate to narrow the area of privacy and

facilitate intrusion into it. In modern terms, the capacity to maintain and

support this enclave of private life marks the difference between a democratic

and a totalitarian society."

Morfe v. Mutuc emphasized the significance of privacy by declaring that "[t]he

right to be let alone is indeed the beginning of all freedom. "27

The description

hewed very closely to that earlier made by Justice Brandeis in Olmstead v.

United States that the right to be let alone was "the most comprehensive of

rights and the right most valued by civilized men."28

It is elementary that before this constitutional right may be invoked a

reasonable or objective expectation of privacy should exist, a concept that was

introduced in the concurring opinion of Justice Harlan in the 1967 case Katz v.

United States,29

no doubt inspired by the oral argument30

of Judge Harvey

Schneider, then co-counsel for petitioner Charles Katz. Since the idea was neverdiscussed in the briefs, Judge Schneider boldly articulated during his oral

argument that "expectations of privacy should be based on an objective

standard, one that could be formulated using the reasonable man standard

from tort law."31

Realizing the significance of this new standard in its Fourth

Amendment jurisprudence, Justice Harlan, in his own way, characterized the

reasonable expectation of privacy test as "the rule that has emerged from prior

decisions."32

Justice Harlan expanded the test into its subjective and objective component,

however, by stressing that the protection of the Fourth Amendment has a two-

fold requirement: "first, that a person have exhibited an actual (subjective)

expectation of privacy and, second, that the expectation be one that society is

prepared to recognize as ‘reasonable’."33

Although the majority opinion in Katz

v. United States made no reference to this reasonable expectation of privacy

test, it instituted the doctrine that "the Fourth Amendment protects people,

not places. What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment protection. But what he

seeks to preserve as private, even in an area accessible to the public, may be

constitutionally protected."34

In the 1968 case Mancusi v. DeForte,35

the US Supreme Court started to apply

the reasonable expectation of privacy test pioneered by Katz v. United States

and declared that the "capacity to claim the protection of the Amendment

depends not upon a property right in the invaded place, but upon whether the

area was one in which there was a reasonable expectation of freedom from

governmental intrusion."36

II

Bearing in mind the history and evolution of the right to privacy as a

Constitutionally-protected right, I now dwell on whether the petitioner, a

public employee, enjoyed an objective or reasonable expectation of privacy in

his workplace, i.e. within the premises of respondent Civil Service Commissio

his employer.

At the outset, I state that the right to privacy involved herein is the petitioner

right to informational privacy in his workplace, specifically his right to work

freely without surveillance or intrusion.

37

I find relevant the doctrine laid down in O’Connor v. Ortega,38

where the US

Supreme Court held that a person was deemed to have a lower expectation o

privacy in his workplace. The decrease in expectation of privacy was not simil

to a non-existent expectation, however, for the US Supreme Court clarified:

"Given the societal expectations of privacy in one’s place of work expressed i

both Oliver and Mancusi, we reject the contention made by the Solicitor

General and petitioners that public employees can never have a reasonable

expectation of privacy in their place of work. Individuals do not lose Fourth

Amendment rights merely because they work for the government, instead of

private employer. The operational realities of the workplace, however, may

make some employees' expectations of privacy unreasonable when an

intrusion is by a supervisor, rather than a law enforcement official. Public

employees’ expectations of privacy in their offices, desks, and file cabinets, liksimilar expectations of employees in the private sector, may be reduced by

virtue of actual office practices and procedures, or by legitimate regulation. x

An office is seldom a private enclave free from entry by supervisors, other

employees, and business and personal invitees. Instead, in many cases office

are continually entered by fellow employees and other visitors during the

workday for conferences, consultations, and other work-related visits. Simply

put, it is the nature of government offices that others – such as fellow

employees, supervisors, consensual visitors, and the general public – may ha

frequent access to an individual's office. We agree with JUSTICE SCALIA that

‘*c+onstitutional protection against unreasonable searches by the governmen

does not disappear merely because the government has the right to make

reasonable intrusions in its capacity as employer,’

but some government offices may be so open to fellow employees or thepublic that no expectation of privacy is reasonable.

xxxx

"Balanced against the substantial government interests in the efficient and

proper operation of the workplace are the privacy interests of government

employees in their place of work, which, while not insubstantial, are far less

than those found at home or in some other contexts. As with the building

inspections in Camara, the employer intrusions at issue here "involve a

relatively limited invasion" of employee privacy. Government offices are

provided to employees for the sole purpose of facilitating the work of an

agency. The employee may avoid exposing personal belongings at work by

simply leaving them at home. [emphasis supplied]

For sure, there are specific reasons why employees in general have a decreas

expectation of privacy with respect to work-email accounts,39

including the

following:

(a) Employers have legitimate interests in monitoring the

workplace;40

(b) Employers own the facilities;

(c) Monitoring computer or internet use is a lesser evil compared

other liabilities, such as having copyright infringing material enter

the company computers, or having employees send proprietary

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67

(d)An employer also has an interest in detecting legally incriminating

material that may later be subject to electronic discovery;

(e) An employer simply needs to monitor the use of computer

resources, from viruses to clogging due to large image or

pornography files.41

In view of these reasons, the fact that employees may be given individual

accounts and password protection is not deemed to create any expectation ofprivacy.

42

Similarly, monitoring an employee’s computer usage may also be impelled by

the following legitimate reasons:

(a) To maintain the company’s professional reputation and image;

(b) To maintain employee productivity;

(c) To prevent and discourage sexual or other illegal workplace

harassment;

(d) To prevent "cyberstalking" by employees;

(e) To prevent possible defamation liability;

(f) To prevent employee disclosure of trade secrets and other

confidential information; and

(g)To avoid copyright and other intellectual property infringement

from employees illegally downloading software, etc.43

Even without Office Memorandum (OM) No. 10, Series of 2002 being issued by

respondent Karina Constantino-David as Chairman of the Civil Service

Commission, the employees of the Commission, including the petitioner, have

a reduced expectation of privacy in the workplace. The objective of the

issuance of OM No. 10 has been only to formally inform and make aware theemployees of the Commission about the limitations on their privacy while they

are in the workplace and to advise them that the Commission has legitimate

reasons to monitor communications made by them, electronically or not. The

objectives of OM No. 10 are, needless to state, clear in this regard .44

III

Unlike the Majority, I find that the petitioner did not absolutely waive his right

to privacy.45

OM No. 10 contains the following exception, to wit:

Waste of Computer Resources. x x x

x x x x

However, Users are given privileged access to the Internet for knowledge

search, information exchange and others. They shall be allowed to use the

computer resources for personal purpose after office hours provided that no

unlawful materials mentioned in item number 7 and 8 are involved, and no

other facilities such as air conditioning unit, video/audio system etc., shall be

used except sufficient lights. [emphasis supplied]

Thereby, OM No. 10 has actually given the petitioner privileged access to the

Internet for knowledge search, information exchange, and others; and has

explicitly allowed him to use the computer resources for personal purposes

after office hours. Implicit in such privileged access and permitted personal use

was, therefore, that he still had a reasonable expectation of privacy vis-à-vis

whatever communications he created, stored, sent, or received after office

hours through using the Commission’s computer resources, such that he could

rightfully invoke the Constitutional protection to the privacy of his

communication and correspondence.

In view of the petitioner’s expectation of privacy, albeit diminished, I differ

from the Majority’s holding that he should be barred from claiming any

violation of his right to privacy and right against unreasonable searches and

seizures with respect to all the files, official or private, stored in his computer

Although I concede that respondent David had legal authority and good

reasons to issue her order to back up the petitioner’s files as an exercise of hepower of supervision, I am not in full accord with the Majority’s holding for th

confiscation of all the files stored in the computer. The need to control or

prevent activities constitutionally subject to the State’s regulation may not be

filled by means that unnecessarily and broadly sweep and thereby invade the

area of protected freedoms.46

I hold, instead, that the petitioner is entitled to a reasonable expectation of

privacy in respect of the communications created, stored, sent, or received

after office hours through the office computer, as to which he must be

protected. For that reason, respondent David’s order to back up files should

only cover the files corresponding to communications created, stored, sent, o

received during office hours. There will be no difficulty in identifying and

segregating the files created, stored, sent, or received during and after office

hours with the constant advancement and improvement of technology and t

presumed expertise of the Commission’s information systems analysts.

Nonetheless, my concurrence with the Majority remains as regards the

petitioner’s administrative liability and the seizure of the remainder of the file

I am reiterating, for emphasis, that the diminution of his expectation of priva

in the workplace derived from the nature and purpose of a government offic

actual office practice and procedures observed therein, and legitimate

regulation.47

Thus, I vote to uphold the legality of OM No. 10. I hasten to add,

to be very clear, that the validity of the seizure of the files should be limited to

the need for determining whether or not the petitioner unjustly utilized offic

resources of the Commission for personal purposes, and should not extend to

the reading of the files’ contents, which would be violative of his right to

privacy.

I adhere to the principle that every man is believed to be free. Freedom gears

man to move about unhampered and to speak out from conviction. That is wthe right to privacy has earned its worthy place in the Bill of Rights. However,

although the right to privacy is referred to as a right to be enjoyed by the

people, the State cannot just sit back and stand aside when, in the exercise of

his right to privacy, the individual perilously tilts the scales to the detriment o

the national interest.

In upholding the validity of OM No. 10, I also suppose that it is not the

intention of the Majority to render the Bill of Rights inferior to an

administrative rule. Rather, adoption of the balancing of interests test, a

concept analogous to the form of scrutiny employed by courts of the United

States, has turned out to be applicable especially in the face of the conflict

between the individual interest of the petitioner (who asserts his right to

privacy) and the Commission’s legitimate concern as an arm of the Governme

tasked to perform official functions. The balancing of interest test has been

explained by Professor Kauper,48

viz:

"The theory of balance of interests represents a wholly pragmatic approach t

the problem of First Amendment freedom, indeed, to the whole problem of

constitutional interpretation. It rests on the theory that is the Court’s functio

in the case before it when it finds public interests served by legislation on the

one hand and First Amendment freedoms affected by it on the other, to

balance the one against the other and to arrive at a judgment where the

greater weight shall be placed. If on balance it appears that the public interes

served by restrictive legislation is of such a character that it outweighs the

abridgment of freedom, then the Court will find the legislation valid. In short,

the balance-of-interests theory rests on the basis that constitutional freedom

are not absolute, not even those stated in the First Amendment, and that the

may be abridged to some extent to serve appropriate and important interest

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68

The Court has applied the balancing of interest test in Alejano v.

Cabuay,49

where it ruled that the substantial government interest in security

and discipline outweighed a detainee’s right to privacy of communication. The

Court has elucidated:

"In Hudson v. Palmer , the U.S. Supreme Court ruled that an inmate has no

reasonable expectation of privacy inside his cell. The U.S. Supreme Court

explained that prisoners necessarily lose many protections of the Constitution,

thus:

‘However, while persons imprisoned for crime enjoy many protections of the

Constitution, it is also clear that imprisonment carries with it the

circumscription or loss of many significant rights. These constraints on inmates,

and in some cases the complete withdrawal of certain rights, are "justified by

the considerations underlying our penal system." The curtailment of certain

rights is necessary, as a practical matter, to accommodate a myriad of

"institutional needs and objectives" of prison facilities, chief among which is

internal security. Of course, these restrictions or retractions also serve,

incidentally, as reminders that, under our system of justice, deterrence and

retribution are factors in addition to correction.’

"The later case of State v. Dunn, citing Hudson v. Palmer ,

abandoned Palmigiano v. Travisono and made no distinction as to the

detainees’ limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored

for the furtherance of a substantial government interest such as security or

discipline. State v. Dunn declared that if complete censorship is permissible,

then the lesser act of opening the mail and reading it is also permissible. We

quote State v. Dunn:

‘*A+ right of privacy in traditional Fourth Amendment terms is fundamentally

incompatible with the close and continual surveillance of inmates and their

cells required to ensure institutional security and internal order. We are

satisfied that society would insist that the prisoner’s expectation of privacy

always yield to what must be considered a paramount interest in institutional

security. We believe that it is accepted by our society that "[l]oss of freedom of

choice and privacy are inherent incidents of confinement."’

x x x x

"Thus, we do not agree with the Court of Appeals that the opening and reading

of the detainees’ letters in the present case violated the detainees’ right to

privacy of communication. The letters were not in a sealed envelope. The

inspection of the folded letters is a valid measure as it serves the same purpose

as the opening of sealed letters for the inspection of contraband.

x x x x

"In assessing the regulations imposed in detention and prison facilities that are

alleged to infringe on the constitutional rights of the detainees and convicted

prisoners, U.S. courts "balance the guarantees of the Constitution with the

legitimate concerns of prison administrators." The deferential review of such

regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict

scrutiny analysis would seriously hamper their ability to anticipate security

problems and to adopt innovative solutions to the intractable problems of

prison administration." [emphasis supplied]

Much like any other government office, the Commission was established

primarily for the purpose of advancing and accomplishing the functions that

were the object of its creation.50

It is imperative, therefore, that its resources

be maximized to achieve utmost efficiency in order to ensure the delivery of

quality output and services to the public. This commitment to efficiency existed

not solely in the interest of good government but also in the interest of letting

government agencies control their own information-processing systems.51

With

the State and the people being the Commission’s ultimate beneficiaries, it is

incumbent upon the Commission to maintain integrity both in fact and in

appearance at all times. OM No. 10 was issued to serve as a necessary

instrument to safeguard the efficiency and integrity of the Commission, a

matter that was of a compelling State interest, and consequently to lay a soun

basis for the limited encroachment in the petitioner’s right to privacy. But,

nonetheless, Justice Goldberg’s concurring opinion in Griswold v.

Connecticut52

might be instructive:

"In a long series of cases this Court has held that where fundamental personaliberties are involved, they may not be abridged by the States simply on a

showing that a regulatory statute has some rational relationship to the

effectuation of a proper state purpose. Where there is a significant

encroachment upon personal liberty, the State may prevail only upon showin

a subordinating interest which is compelling (Bates v. Little Rock, 361 U.S. 51

524). The law must be shown ‘necessary, and not merely rationally related, to

the accomplishment of a permissible state policy.’" (McLaughlin v . Florida, 37

U.S. 184, 186)

Even assuming that the anonymous tip about the petitioner’s misuse of the

computer proved to be false, i.e., the petitioner did not really engage in

lawyering for or assisting parties with interests adverse to that of the

Commission, his permitting former colleagues and close friends not officially

connected with the Commission to use and store files in his computer ,53

whic

he admitted, still seriously breached, or, at least, threatened to breach the

integrity and efficiency of the Commission as a government office.

Compounding his breach was that he was well informed of the limited

computer use and privacy policies in OM No. 10, in effect since 2002, prior to

the seizure of his files in January of 2007. The Court should not disregard or

ignore the breach he was guilty of, for doing so could amount to abetting his

misconduct to the detriment of the public who always deserved quality servic

from the Commission.

IV

As early as in Olmstead v. United States,54

Justice Brandeis anticipated the

impact of technological changes to the right to privacy and significantly

observed that -

"xxx time works changes, brings into existence new conditions and purposes.Subtler and more far-reaching means of invading privacy have become

available to the Government. Discovery and invention have made it possible

the government, by means far more effective than stretching upon the rack,

obtain disclosure in court of what is whispered in the closet. Moreover, "in th

application of a Constitution, our contemplation cannot be only of what has

been but of what may be." The progress of science in furnishing the

Government with means of espionage is not likely to stop with wiretapping.

Ways may someday be developed by which the Government, without remov

papers from secret drawers, can reproduce them in court, and by which it wi

be enabled to expose to a jury the most intimate occurrences of the home.

Advances in the psychic and related sciences may bring means of exploring

unexpressed beliefs, thoughts and emotions. xxx"

In this era when technological advancement and the emergence of

sophisticated methodologies in terms of the science of communication arealready inexorable and commonplace, I cannot help but recognize the potent

impact of the Majority’s ruling on future policies to govern situations in the

public and private workplaces. I apprehend that the ruling about the decreas

expectation of privacy in the workplace may generate an unwanted implicatio

for employers in general to henceforth consider themselves authorized,

without risking a collision with the Constitutionally-protected right to privacy

to probe and pry into communications made during work hours by their

employees through the use of their computers and other digital instruments

communication. Thus, the employers may possibly begin to monitor their

employees’ phone calls, to screen incoming and out-going e-mails, to capture

queries made through any of the Internet’s efficient search engines (like

Google), or to censor visited websites (like Yahoo!, Facebook or Twitter) in th

avowed interest of ensuring productivity and supervising use of business

resources. That will be unfortunate.



























69

The apprehension may ripen into a real concern about the possibility of abuse

on the part of the employers. I propose, therefore, that the ruling herein be

made pro hac vice, for there may be situations not presently envisioned that

may be held, wrongly or rightly, as covered by the ruling, like when the

instrument of communication used is property not owned by the employer

although used during work hours.

As a final note, let me express the sentiment that an employee, regardless of

his position and of the sector he works for, is not a slave of trade expected todevote his full time and attention to the job. Although the interests of capital

or public service do merit protection, a recognition of the limitations of man as

a being needful of some extent of rest, and of some degree of personal space

even during work hours, is most essential in order to fully maximize the

potential by which his services was obtained in the first place. The job should

not own him the whole time he is in the workplace. Even while he remains in

the workplace, he must be allowed to preserve his own identity, to maintain an

inner self, to safeguard his beliefs, and to keep certain thoughts, judgments and

desires hidden. Otherwise put, he does not surrender his entire expectation of

privacy totally upon entering the gates of the workplace. Unreasonable

intrusion into his right to be let alone should still be zealously guarded against,

albeit he may have waived at some point a greater part of that expectation. At

any rate, whenever the interest of the employer and the employee should

clash, the assistance of the courts may be sought to define the limits of

intrusion or to balance interests.

ACCORDINGLY, I vote to deny the petition, subject to the qualification that the

petitioner’s right to privacy should be respected as to the files created, stored,

sent or received after office hours; and to the further qualification that the

decision be held to apply pro hac vice.

Documents

Polirev Bill of Rights Cases 36-48