G.R. No. L-59524 February 18, 1985

JOVITO R. SALONGA, petitioner, vs.HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

 

GUTIERREZ, JR., J.:

The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines.

The background of this case is a matter of public knowledge.

A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely.

As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property.

On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons.

On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother.

The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila.

Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time.

On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980.

On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings.

On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected.

On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority.

Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges.

On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence.

On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice.

On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981.

On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad.

On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself.

On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him.

On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner.

The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today.

After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition.

However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents.

The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined.

The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception.

In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit:

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... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599;Echarol v. Purisima, et al., 13 SCRA 309.)

On this argument, we ruled:

There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."

Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused.

In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions.

The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted.

Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system?

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction?

We do not think so.

The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Tañada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied:

A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)

Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information.

Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness.

According to Lovely's statement, the following events took place:

36. Q. Did Psinakis tell you where to stay?

A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission

37. Q. Did you comply as instructed?

A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila.

38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis?

A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M.

39. Q. What happened then?

A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name.

40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials?

A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He

also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed.

41. Q. How long did you wait until that somebody arrived?

A. About thirty (30) minutes.

41. Q. What happened when the man arrived?

A. This man arrived and I was greatly surprised to see Atty. Renato Tañada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Tañada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Tañada told me "Nasa akin ang kailangan mo, nasa kotse."

43. Q. Were the materials given to you?

A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Tañadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Tañada handed me a "Puma" bag containing all the materials I needed.

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45. Q. What were the contents of the Puma bag?

A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each.

However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned:

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Q. Who were the people that you contacted in Manila and for what purpose?

A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga.

And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. �Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Tañada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied)

During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement:

Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated?

WITNESS:

A. Not to my knowledge.

COURT TO WITNESS:

Q. Mr. Witness, who invited you to the party?

A. Raul Daza, your Honor.

Q. Were you told that Mr. Salonga would be present in the party.

A. I am really not quite sure, your Honor.

Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party?

A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).

Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said:

Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga

which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)

Respondent judge further said:

COURT:

As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination.

ATTY. YAP:

Because according to him, it was in pursuance of the plan that he came to Manila.

COURT:

According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions.

COURT:

In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74).

Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Tañada, which was all that Lovely really stated in his testimony.

However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss:

On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately.

It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers.

The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation.

The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons-

(1) Because his house was used as a "contactpoint"; and

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately."

The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined.

The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tañada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely.

The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing.

It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding.

The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive

organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate."

We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments.

The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech.

It stated:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President.

In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy.

Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to:

(6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof.

As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization.

Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that:

WITNESS:

Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10].

Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner:

COURT:

Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga?

A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents.

The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the

case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention.

The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt.

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).

The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution.

We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations.

Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution.

Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic.

Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions.

The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions.

The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees.

In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated:

The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required.

In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution).

In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports.

In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records.

WHEREFORE, the petition is DISMISSED for having become moot and academic.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur.

Aquino, De la Fuente and Alampay, JJ., took no part.

 

 

 

Separate Opinions

 

ABAD SANTOS, J., concurring

Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions.

Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic.

I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez.

I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned.

I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often.

Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action.

 

 

Separate Opinions

ABAD SANTOS, J., concurring

Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions.

Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic.

I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez.

I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned.

I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often.

Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action.

G.R. No. 72670 September 12, 1986

SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUÑOZ PALMA. JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME, **,petitioners, 

vs.SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, *** , respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners.

Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.

Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.

Ramon M. Bernaldo for respondent H. Gosuico.

Romulo Quimbo for respondent B. Vera Cruz.

Norberto J. Quisumbing for respondent P. Olivas.

Felix Solomon for respondent Col. A. Custodio.

Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran.

R E S O L U T I O N

 

TEEHANKEE, C.J.:

Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a nationwide press conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but

overwhelming ." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts.

Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it

(was) technically impossible to get inside (such) a cordon." 2 The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it."

The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom.

The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national shame specially because of the early distortions and exaggerations in both foreign and local media 4 so that all right thinking and honest men desire to

ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false starts, 5 he

finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done."

The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention."

The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote:

The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality,

humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life.

More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country-the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people.

The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. "Nobody who has great authority can be trusted not to go beyond its proper limits." Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedom-loving people.

To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human Ideals in which the highest sense of moral values and integrity are strictly required.

A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations.

It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow ... Even at a

fairly low level, I would have known. I know how they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy).

MARCOS: Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing. 8

In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," and extended "My very best wishes to you and your family for a speedy resolution of your case," 9 even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." 10

It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a re-trial

before an impartial tribunal by an unbiased prosecutor. 10-a

At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent court from

rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment.

But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in reverse, 12 resolved to dismiss the petition and to

lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its decision.  13 The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an eight-to-three vote, with Justice Gutierrez joining the dissenters. 14

On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985.

On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent.

On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises, having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder cases below against herein private party respondents." He candidly admitted also in his memorandum: "There is not much

that need be said about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never been denied." 15-a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course."

Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note passing issue once and for all.

Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows:

1. AB INITIO, A. VERDICT OF ACQUITTAL!

Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985.

2. MALACAÑANG CONFERENCE PLANNED SCENARIO OF TRIAL

At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacañang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members of the Panel

Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof.

The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then).

During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do". . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious "the boys were frantic when they heard that they will be charged in court, and wig be detained at city jail."

From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court, Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent.

In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned.

It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited.

Towards the end of the two-hour meeting and after the script had been tacitly mapped out, the former President uttered: "Mag moro-moro na lang kayo."

The parting words of the former President were: "Thank you for your cooperation. I know how to reciprocate."

While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on.

Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the

bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void."

New Solicitor General Sedfrey Ordoñez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim.

Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures.

As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity.

After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted its extensive 64-page Report 16 wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows:

1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman.

2. When Malacanang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the tree members of the Special Investigating Panel, and justice Pamaran to a conference in Malacanang in the early evening of January 10, 1985.

3. In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino.

4. Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy.

5. Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be "categorized" so that some of them would merely be charged as accomplices and accessories.

6. In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time.

7. The instructions given in the Malacanang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witneses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case.

8. That that expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings.

9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacañang directive, justice Herrera played his role with manifestly ambivalent feelings.

10. Sufficient evidence has been ventilated to show a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacañang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian ruler.

The Commission submitted the following recommendation.

Considering the existence of adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a

declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted.

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution.

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist', and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the final outcome of the case" of total absolution of the twenty-six respondents accused of all criminal and civil liability.

The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts

at sifting the chaff from the grain, 17 the Commission properly appraised the evidences presented and denials made by public respondents, thus:

The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts, but by a communist hired gun. It was, therefore, not a source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination.

The calling of the conference was undoubtedly to accomplish this purpose. . . .

President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office.

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After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished.

According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof.

It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacanang conference wherein the said directive was given. . . .

The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case.

The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused, President Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out of the room President Marcos expressed his thanks to the group and uttered "I know how to reciprocate," did not receive any denial or contradiction either on the part of justice Fernandez or justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.)

The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacanang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the Aquino-Galman case. The intensity of this pressure is readily deductible from the personality of the one who exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled, the then head of state to exercise authoritarian powers. That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the public eye is shown by the effort to assure its secrecy.None but those directly involved were caned to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually,no public mention alas ever

made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former president was no longer around.

President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of "curiosity," or "out of respect to the Office of the President," or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being summoned to Malacanang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985.18

The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation."

Suffice it to give hereinbelow brief excerpts:—

1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacañang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to charge all of the twenty-six

(26) respondents as principals of the crime of double murder." 19 As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said date which did not go through due to the summons for them to go to Malacanang in the early evening of said date." 20

2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled,

perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense."

The Report specified the ordeals of the prosecution witnesses: 21 Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. Witnesses Viesca andRañas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that

... Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya. ... She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the request of its manager to talk with her about her proposed testimony; that a certain William Fariñas offered her plane tickets for a trip abroad; that Mayor Rudy Fariñas of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Fariñas offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying.

It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building. Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacañang people who were keeping track of the proceedings.

Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who

jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in Power [despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate.

3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for."

4. Nine proposed rebuttal witnesses not presented.

5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else."

6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter. ...

"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Comission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly.

"There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice

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"It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth.

What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division. . . .

7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime. ..."

8. The monitoring of proceedings and developments from Malacañang and by Malacañang personnel: "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacañang presumably for it to know what was happening and to take remedial measures as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and Malacañang personnel stayed to keep track of the proceedings." the close monitoring by Malacañang showed its results on several occasions specified in the Report. Malacañang was immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacañang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled He saw to it that he would know if his instructions will be complied with."

9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged

in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power.

"In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-six accused on thestandard ground that their guilt had not been proven beyond reasonable doubt, as was the most logical and appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. ...

Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was of the view that some of the accused should be convicted he having found difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacañang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis supplied)

The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur 22) since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused

was unpalatable (it would summon the demonstrators back to the streets 23 ) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their acquittal the legal shield of double jeopardy. 24

Indeed, the secret Malacanang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for habeas corpus, 25 "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice." 26 His obsession for "the boys' " acquittal led to severalfirst which would otherwise be inexplicable:—

1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators."

2. He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report).

3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers'

incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and searing his lips.

4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and

5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and in conspiracy with one another."

The fact of the secret Malacañang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacañang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985."

No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for

exclusive jurisdiction of courts martial over criminal offenses committed by military men 26-a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means

of predetermining the outcome of individual cases. 26-b "This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court.

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare

the sham trial a mock trial the non-trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio.

1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, 27

Where the prosecution is deprived of a fair opportunity to prosecute and prove its case its right to due process is thereby violated. 27-a

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra).

Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process.

In effect the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy.

More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. 28 Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people.

To paraphrase Brandeis: 29 If the authoritarian head of the government becomes the law-breaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy.

Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.

|lang1033 xxx xxx xxx

"Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 30

2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacanang.

PJ PAMARAN

Well the court believes that we should proceed with the trial and then deal later on with that. After all, the most important thing here is, shall we say, the decision of the case.

J. HERRERA

I think more important than the decision of the case, Your Honor, is the capacity of the justices to sit in judgment. That is more important than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31

But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows:

... the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance (Page 22, Decision). 32

The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process to the People if the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is substantiated. 34

In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. Aquilizan 35, Wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner."

3. Re: Objections of respondents.-The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined judgment of acquittal was unlawful and void ab initio.

(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public respondents (court and Tanodbayan) for the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused.

(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict.

(c) The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove.

(d) The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration.

(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacañang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) unanimously voted to admit the second motion for reconsideration. 37

4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor.-There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now

admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President.

As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation."

Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed.

The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, the Constitution and their own conscience and honor.

5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden.

ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to an

This resolution is immediately executory. SO ORDERED.

Yap, Cruz, Paras and Feliciano, JJ., concur.

Feria, **** Fernan and Narvasa , ***** JJ., took no part.

 

 

Separate Opinions

 

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task.

A public prosecutor is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shag win a case but that justice shall be done. As such, he is in a peculiar and every definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69 Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and an liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double

jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and, for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a re-trial is to put them twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal consequence that there was no trial and judgment to speak of, and under the circumstances peculiar only to these cases, I vte for a re-trial in the interest of truth and the ends of public justice. As in all �criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of attendant irregularities. With the greatest significance being given by our people to the said cases, which are evidently of historical importance, I am readily persuaded that it is to our national interest that all relevant evidence that may be now available be provided an opportunity to be received and made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a

declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the Sandiganbayan and the ordering of are trial.

GUTIERREZ, JR., J. concurring:

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the petition, we were denying the petitioners every reasonable opportunity to prove their allegations of non-independent and biased conduct of both the prosecution and the trial court. I stated that the issues of miscarriage of justice and due process arising from that conduct should be allowed more extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented from the Court's resolution denying the petitioners' motions to continue presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that judicial acts are regularly performed and that public officers have discharged their duties in accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?

Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim, prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of allowing the heated passions and emotions generated by the Aquino assassination to cool off or die down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I, therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question our authority to look into the exercise of its jurisdiction. There was the further matter of television cameras during trial, their effect on the witnesses and the judges, and other mischievous potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and suspicions than appeared in the records at that time. The Court's opinion penned by the Chief Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous harassment of a person who has already undergone the agony of prosecution and trial for one and the same offense. It certainly was never intended to cover a situation where the prosecution suppresses some of its own evidence, where the accused correctly and eagerly anticipate a

judgment of acquittal, and where the court appears to have made up its mind even before trial has started.

Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the retrial of this case. The fairly strong language used by the Court in its main opinion underscores the gravity with which it views the travesties of justice in this "trial of the century." At the same time, nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any statements about the circumstances of the assassination or about the military version of the killings are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na loob for an appointment or reappointment, or any other extraneous matters should color or influence the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It is not enough for the future proceedings to be fair they should be above any suspicion of partiality, bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as another mistrial, ad infinitum.

For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive paragraph) of his Separate Concurring Opinion.

 

 

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Consistent with what I had perceived as the need to establish the truth behind the vicious assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by petitioners.

There is reason to believe that some vital evidence had been suppressed by the prosecution, or that it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task.

A public prosecutor is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shag win a case but that justice shall be done. As such, he is in a peculiar and every definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. [Emphasis supplied] (Suarez vs. Platon, 69 Phil. 556 [1940])

He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished (People vs. Esquivel, 82 PhiL 453 [1948]).

Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and an liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double jeopardy may be based. "To entitle the accused to the plea of former jeopardy the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047).

The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and, for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a re-trial is to put them twice in jeopardy.

It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682).

"A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A. 1110, 65 Conn. 265,48 Am. S.R. 202,27 L. RA. 498).

The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal consequence that there was no trial and judgment to speak of, and under the circumstances peculiar only to these cases, I vote for a re-trial in the interest of truth and the ends of public justice. As in all criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity.

ALAMPAY, J., concurring:

Considering that certain significant facts and circumstances not previously disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case ...;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also pre-determined the outcome of the case; ..." I join in granting petitioners' second motion for reconsideration.

In my considered view, the ends of Justice will be best served by allowing the trial anew of the subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of attendant irregularities. With the greatest significance being given by our people to the said cases, which are evidently of historical importance, I am readily persuaded that it is to our national interest that all relevant evidence that may be now available be provided an opportunity to be received and made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the Sandiganbayan and the ordering of are trial.

GUTIERREZ, JR., J. concurring::

On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting on a motion for reconsideration filed by the petitioners.

When the Court initially dismissed the petition, I issued a separate concurring and dissenting opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the petition, we were denying the petitioners every reasonable opportunity to prove their allegations of non-independent and biased conduct of both the prosecution and the trial court. I stated that the issues of miscarriage of justice and due process arising from that conduct should be allowed more extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented from the Court's resolution denying the petitioners' motions to continue presenting their case.

Since the majority of the Court, however, had decided to resolve the petition on its merits and the findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's action on two grounds-(1) the right of the accused to speedy trial and (2) the presumption in law that judicial acts are regularly performed and that public officers have discharged their duties in accordance with law.

The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome the presumption of regular performance of official duty upon which I based my concurrence.

What were some of these misgivings now given substance by the investigation?

Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim, prominent lawyers and law professors, and retired Justices assuming the uncommon role of alleging not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of allowing the heated passions and emotions generated by the Aquino assassination to cool off or die down, the accused insisted on the immediate rendition of a decision.

The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I, therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question our authority to look into the exercise of its jurisdiction. There was the further matter of television cameras during trial, their effect on the witnesses and the judges, and other mischievous potentialities.

The report of the Vasquez Comission now shows that there was more to these misgivings and suspicions than appeared in the records at that time. The Court's opinion penned by the Chief Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan not an unbiased prosecutor.

The right against double jeopardy is intended to protect against repeated litigations and continuous harassment of a person who has already undergone the agony of prosecution and trial for one and the same offense. It certainly was never intended to cover a situation where the prosecution suppresses some of its own evidence, where the accused correctly and eagerly anticipate a judgment of acquittal, and where the court appears to have made up its mind even before trial has started.

Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly result in a just or valid decision.

I am, however, constrained to write this separate opinion to emphasize a concern of this Court and of an Filipinos who want genuine justice to be realized in this case.

In the same way that we deplore the pressures and partiality which led to the judgment of acquittal we must insure that absolutely no indication of bias, pre-judgment, or vindictiveness shall taint the retrial of this case. The fairly strong language used by the Court in its main opinion underscores the gravity with which it views the travesties of justice in this "trial of the century." At the same time, nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any statements about the circumstances of the assassination or about the military version of the killings are intended solely for one issue whether or not the Sandiganbayan acquittals should be set aside and a retrial ordered.

Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na loob for an appointment or reappointment, or any other extraneous matters should color or influence the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It is not enough for the future proceedings to be fair they should be above any suspicion of partiality, bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as another mistrial, ad infinitum.

For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second motion for reconsideration.

Feliciano, J., concurs in his statements in the last three paragraphs (prior to the dispositive paragraph) of his Separate Concurring Opinion.

G.R. No. L-30894 March 25, 1970

EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO, RUPERTO AMISOTO, ALBERTO SOTECO, SOLFERINO TITONG, ET AL., petitioners, vs.JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHAMBRA, AVELINO C. MENEZ, EFRAIN S. MACLANG, ET AL., respondents.

Amelito R. Mutuc for petitioners.

Colonel Manuel V. Reyes (Judge Advocate General, GSC), Major Samuel M. Soriano (JAGS), Major Higinio E. Dacanay, Jr. (JAGS, PC) and Solicitor General Felix V. Makasiar, Assistant Solicitor General Crispin V. Bautista, Solicitor Jaime M. Lantin and Guillermo Nakar, Jr. for respondents.

 

CASTRO, J.:

This case presents another aspect of the court-martial proceedings against the petitioner, Major Eduardo Martelino, alias Abdul Latif Martelino, of the Armed Forces of the Philippines, and the officers and men under him, for violation of the 94th and 97th Articles of War, as a result of the alleged shooting on March 18, 1968 of some Muslim recruits then undergoing commando training on the island of Corregidor. Once before the question was raised before this Court whether the general court-martial, convened on April 6, 1968 to try the case against the petitioners, acquired jurisdiction over the case despite the fact that earlier, on March 23, a complaint for frustrated murder had been filed in the fiscal's office of Cavite City by Jibin Arula (who claimed to have been wounded in the incident) against some of the herein petitioners. The proceedings had to be suspended until the jurisdiction issue could be decided. On June 23, 1969 this Court ruled in favor of the jurisdiction of the military court.1

The jurisdiction question thus settled, attention once again shifted to the general court-martial, but no sooner had the proceedings resumed than another hitch developed. This came about as the petitioners, the accused in the court-martial proceedings, in turn came to this Court, seeking relief against certain orders of the general court-martial.

It appears that at the hearing on August 12, 1969 the petitioner Martelino sought the disqualification of the President of the general court-martial, following the latter's admission that he read newspaper

stories of the Corregidor incident. The petitioner contended that the case had received such an amount of publicity in the press and other news media and in fact was being exploited for political purposes in connection with the presidential election on November 11, 1969 as to imperil his right to a fair trial. After deliberating, the military court denied the challenge.

Thereafter the petitioners raised peremptory challenges against Col. Alejandro, as president of the court-martial, and Col. Olfindo, Lt. Col. Camagay, Lt. Col. Valones, Lt. Col. Blanco and Col. Malig, as members. With regard to peremptory challenges it was the petitioners' position that for each specification each accused was entitled to one such challenge. They later changed their stand and adopted that of the trial judge advocate that "for each specification jointly tried, all of the accused are entitled to only 1 peremptory challenge; and that with respect to the specifications tried commonly, each one of the accused is entitled to one peremptory challenge." They there contended that they were entitled to a total of eleven peremptory challenges. On the other hand the court-martial ruled that the accused were entitled to only one peremptory challenge as the specifications were being jointly tried.

The petitioners therefore filed this petition for certiorari and prohibition, to nullify the orders of the court-martial denying their challenges, both peremptory and for cause. They allege that the adverse publicity given in the mass media to the Corregidor incident, coupled with the fact that it became an issue against the administration in the 1969 elections, was such as to unduly influence the members of the court-martial. With respect to peremptory challenges, they contend that they are entitled to eleven such challenges, one for each specification.

On August 29, 1969 this Court gave due course to the petition, required the respondents as members of the general court-martial to answer and, in the meantime, restrained them from proceeding with the case.

In their answer the respondents assert that despite the publicity which the case had received, no proof has been presented showing that the court-martial's president's fairness and impartiality have been impaired. On the contrary, they claim, the petitioner's own counsel expressed confidence in the "integrity, experience and background" of the members of the court. As a preliminary consideration, the respondents urge this Court to throw out the petition on the ground that it has no power to review the proceedings of the court-martial, "except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced," and that at any rate the petitioners failed to exhaust remedies available to them within the military justice system.

I

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. "The single inquiry, the test, is jurisdiction."2 But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion — what in the language of Rule 65 is referred to as "grave abuse of discretion" — as to give rise to a defect in their jurisdiction.3 This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition, namely, whether in overruling the petitioners' challenges, the general court-martial committed such an abuse of discretion as to call for the exercise of the corrective powers of this Court. It is thus obvious that no other way is open to this Court by which it may avoid passing upon the constitutional issue thrust upon it. Nor will the fact that there may be available remedies within the system of military justice bar review considering that the questions raised are questions of law.4

And so the threshold question is whether the publicity given to the case against the petitioners was such as to prejudice their right to a fair trial. As already stated, the petitioner Martelino challenged the court-martial president on the ground that newspaper accounts of what had come to be referred to as the "Corregidor massacre" might unduly influence the trial of their case. The petitioner's counsel referred to a news item appearing in the July 29, 1969 issue of the Daily Mirror and cited other news reports to the effect that "coffins are being prepared for the President (of the Philippines) in Jolo," that according to Senator Aquino "massacre victims were given sea burial," and that Senator Magsaysay, opposition Vice President candidate, had gone to Corregidor and "found bullet shells." In addition the petitioners cite in this Court a Manila Times editorial of August 26, 1969 which states that "The Jabidah [code name of the training operations] issue was bound to come up in the course of the election campaign. The opposition could not possibly ignore an issue that is heavily loaded against the administration." The petitioners argue that under the circumstances they could not expect a just and fair trial and that, in overruling their challenge for cause based on this ground, the general court-martial committed a grave abuse of discretion. In support of their contention they invoke the rulings of the United States Supreme Court in Irvin v. Dowd,5 Rideau vs. Louisiana,6 Estes v. Texas,7 and Shepard v. Maxwell.8

An examination of the cases cited, however, will show that they are widely disparate from this case in a fundamental sense. In Irvin, for instance, the Supreme Court found that shortly after the petitioner's arrest in connection with six murders committed in Vanderburgh County, Indiana, the prosecutor and police officials issued press releases stating that the petitioner had confessed to the six murders and that "a barrage of newspaper headlines articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial." In reversing his conviction, the Court said:

Here the "pattern of deep and bitter prejudice' shown to be present throughout the community, ... was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the processes of the average man. ... Where one's life is at stake — and accounting for the frailties of human nature — we can only say that in the light of the circumstances here the finding of impartiality does not meet the constitutional standard.9

Irvin marks the first time a state conviction was struck down solely on the ground of prejudicial publicity. 10 In the earlier case of Shepherd v. Florida, 11 which involved elements of publicity, the reversal of the conviction was based solely on racial discrimination in the selection of the jury, although to concurring Justice Jackson, who was joined by Justice Frankfurter, "It is hard to imagine a more prejudicial influence than a press release by the officer of the court charged with defendants' custody stating that they had confessed, and here just such a statement unsworn to, unseen, uncross-examined and uncontradicted, was conveyed by the press to the jury. 12

In Rideau, the petitioner, suspect in the robbery of a bank in Lake Charles, Louisiana and in the kidnapping of three of its employees, and in the killing of one of them, was similarly given "trial by publicity." Thus, the day after his arrest, a moving picture film was taken of him in an "interview" with the sheriff. The "interview," which lasted approximately 20 minutes, consisted of interrogation by the sheriff and admission by Rideau that he had perpetrated the bank robbery, kidnapping and murder. The interview was seen and heard on television by 24,000 people. Two weeks later he was arraigned. His lawyers promptly moved for a change of venue but their motion was denied and Rideau was convicted and sentenced to death. Rideau's counsel had requested that jurors be excused for cause, having exhausted all of their peremptory challenges, but these challenges for cause had been denied by the trial judge. In reversing his conviction, the Court said:

[W]e hold that it was a denial of due process of law to refuse the request for a change of venue, after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged. For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau's trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.13

In the third case, Estes, the Court voided a televised criminal trial for being inherently a denial of due process.

The state ... says that the use of television in the instant case was "without injustice to the person immediately concerned," basing its position on the fact that the petitioner has established no isolate prejudice and that this must be shown in order to invalidate a conviction in these circumstances. The State paints too broadly in this contention, for this Court itself has found instances in which a showing of actual prejudice is not a prerequisite to reversal. This is such a case. It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is inherently lacking in due process. 14

In Sheppard, the celebrated murder case of Sam Sheppard, who was accused of the murder of his wife Marilyn, the Supreme Court observed a "carnival atmosphere" in which "bedlam reigned at the courthouse ... and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard." It observed that "despite the extent and nature of the publicity to which the jury was exposed during the trial, the judge refused defense counsel's other requests that the jury be asked whether they had read or heard specific prejudicial comment about the case. ... In these circumstances, we assume that some of this material reached members of the jury." The Court held:

From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition sequestration of the jury was something the judge should have sua spontewith counsel. If publicity during the proceeding threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interference. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measure. 15

In contrast the spate of publicity in this case before us did not focus on the guilt of the petitioners but rather on the responsibility of the Government for what was claimed to be a "massacre" of Muslim trainees. If there was a "trial by newspaper" at all, it was not of the petitioners but of the Government. Absent here is a showing of failure of the court-martial to protect the accused from massive publicity encouraged by those connected with the conduct of the trial 16 either by a failure to control the release of information or to remove the trial to another venue or to postpone it until the deluge of prejudicial publicity shall have subsided. Indeed we cannot say that the trial of the petitioners was being held under circumstances which did not permit the observance of those imperative decencies of procedure which have come to be identified with due process.

At all events, even granting the existence of "massive" and "prejudicial" publicity, since the petitioners here do not contend that the respondents have been unduly influenced but simply that they might be by the "barrage" of publicity, we think that the suspension of the court-martial proceedings has accomplished the purpose sought by the petitioners' challenge for cause, by postponing the trial of the petitioner until calmer times have returned. The atmosphere has since been cleared and the publicity surrounding the Corregidor incident has so far abated that we believe the trial may now be resumed in tranquility.

II

Article of War 18 provides that "Each side shall be entitled to one peremptory challenge, but the law member of the court shall not be challenged except for cause." The general court-martial originally interpreted this provision to mean that the entire defense was entitled to only one peremptory challenge. Subsequently, on August 27, 1969, it changed its ruling and held that the defense was entitled to eight peremptory challenges, but the petitioners declined to exercise their right to challenge on the ground that this Court had earlier restrained further proceedings in the court-martial.

It is the submission of the petitioners that "for every charge, each side may exercise one peremptory challenge," and therefore because there are eleven charges they are entitled to eleven separate peremptory challenges. The respondents, upon the other hand, argue that "for each specification jointly tried, all of the accused are entitled to only one peremptory challenge and that with respect to specifications tried commonly each of the accused is entitled to one peremptory challenge." Although there are actually a total of eleven specifications against the petitioners, three of these should be considered as merged with two other specifications, "since in fact they allege the same offenses committed in conspiracy, thus leaving a balance of eight specifications." The general court-martial thereof takes the position that all the 23 petitioners are entitled to a total of only eight peremptory challenges.

We thus inescapably confront, and therefore now address, the issue here posed.

We are of the view that both the petitioners and the general court-martial misapprehend the true meaning, intent and scope of Article of War 18. As will hereinafter be demonstrated, each of the petitioners is entitled as a matter of right to one peremptory challenge. The number of specifications and/or charges, and whether the accused are being jointly tried or undergoing a common trial, are of no moment.

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, this aside from the fact that the officer corps of the developing army was numerically inadequate for the

demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court-martial or by the accused. After December 17, 1958, when the Manual for Courts-Martial 17 of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War II in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12, 1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause."

By its very inherent nature a peremptory challenge does not require any reason or ground therefor to exist or to be stated. It may be used before, during, or after challenges for cause, or against a member of the court-martial unsuccessfully challenged for cause, or against a new member if not previously utilized in the trial. A member challenged peremptorily is forthwith excused from duty with the court-martial.

The right of challenge comes from the common law with the trial by jury itself, and has always been held essential to the fairness of trial by jury. 18

As was said by Blackstone, and repeated by Mr. Justice Story: 'In criminal cases, or at least in capital ones, there is in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons: 1) As every one must be sensible, what sudden impression and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law has conceived a prejudice even without being able to assign a reason for his dislike. 2) Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.' 19

The right to challenge is in quintessence the right to reject, not to select. If from the officers who remain an impartial military court is obtained, the constitutional right of the accused to a fair trial is maintained. ... 20

As we have hereinbefore stated, each of the 23 petitioners (accused before the general court-martial) is entitled to one peremptory challenge, 21 irrespective of the number of specifications and/or charges and regardless of whether they are tried jointly or in common. Three overriding reasons compel us to this conclusion.

First, a peremptory challenge is afforded to an accused who, whether rightly or wrongly, honestly feels that the member of the court peremptorily challenged by him cannot sit in judgment over him, impartially. Every accused person is entitled to a fair trial. It is not enough that objectively the members of the court may be fair and impartial. It is likewise necessary that subjectively the accused

must feel that he is being tried by a fair and impartial body of officers. Because the petitioners may entertain grave doubts as to the fairness or impartiality of distinct, separate and different individual members of the court-martial, it follows necessarily that each of the accused is entitled to one peremptory challenge.

Second, Article of War 18 does not distinguish between common trials and joint trials, nor does it make the nature or number of specifications and/or charges a determinant. Reference is made by the respondents here to US military law, in support of their argument that for each specification jointly tried all of the accused are entitled to only one peremptory challenge and with respect to all specifications tried in common each of the accused is entitled to one peremptory challenge. We have carefully scrutinized U.S. military law, and it is unmistakable from our reading thereof that each accused person, whether in a joint or common trial, unquestionably enjoys the right to one peremptory challenge. 22

Third, a perceptive analysis of the companion articles 23 to Article 18 convinces us that the word, "each side," as used in the said article in reference to the defense, should be construed to mean each accused person. Thus, Articles of War 17 (Trial Judge Advocate to Prosecute; Counsel to Defend), 19 (Oath), 21 (Refusal or Failure to Plead), 28 (Court to Announce Action), 29 (Closed Sessions), 30 (Method of Voting), and 36 (Irregularities — Effect of), unequivocally speak of and refer to the "accused" in the singular.

ACCORDINGLY, subject to our pronouncement that each of the 23 petitioners is entitled to one separate peremptory challenge, the present petition is denied. The temporary restraining order issued by this Court on August 29, 1969 is hereby lifted. No pronouncement as to costs. .

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Dizon, J., took no part.

 

G.R. No. L-29169           August 19, 1968

ROGER CHAVEZ, petitioner, vs.THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents.

SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias"Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1äwphï1.ñët

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.

COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused].

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object.

COURT:

On what ground, counsel? .

ATTY. CARBON:

On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?.

FISCAL GRECIA:

I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony.

x x x           x x x           x x x

COURT: [after the recess]

Are the parties ready? .

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

As per understanding, the proceeding was suspended in order to enable me to confer with my client.

I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witnessstand.

ATTY. CARBON:

I submit.

x x x           x x x           x x x

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel.

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this witness.

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for the prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness.

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows:

ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.'

COURT:

That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand.

ATTY. IBASCO:

I submit.

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note.

On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor.

The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted.

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued:

It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez'accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame.

The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not

more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car.

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals.

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented.

We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here.

1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right — constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." .

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made,

have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations

were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:.

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

The judge's words heretofore quoted — "But surely counsel could not object to have the accused called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.

3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez),

Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët

4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1äwphï1.ñët

There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, andintelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated.34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally

given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise:

Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... "42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled"People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate opinion.

Separate Opinions

CASTRO, J., dissenting :

In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States v. Junio, reported in the first volume of the Philippine Reports, on page 50 thereof.

Resolution of the case did not require an extended opinion (it consumed no more than a page in the Reports). For indeed the facts fitted exactly into the prohibition contained in The President's Instruction to the (Second) Philippine Commission1 "that no person shall ... be compelled in any criminal case to be a witness against himself.".

There was no need either for a dissertation on the Rights of Man, though occasion for this was not lacking as the predominant American members of the Court were under a special commission to prepare the Filipinos for self-government. The privilege against self-incrimination was fully understood by the Filipinos, whose own history provided the necessary backdrop for this privilege. 2

The Supreme Court simply said, "The judge had no right to compel the accused to make any statement whatever," and declared the proceedings void.

Nor was there a similar judicial error likely to be committed in the years to come, what with the constant reminder of a Bill of Rights enshrined in successive organic acts intended for the Philippines.3 This is not to say that the Philippine history of the privilege ended with the Junio case. To be sure, violations of the privilege took other, and perhaps subtle, forms4 but not the form directly prohibited by the privilege. Even in the recent case of Cabal v. Kapunan5 it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged.6 If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 13797 were civil and not criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion could confidently say:

At the outset, it is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand. (3 Whartons Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character.

Today, perhaps because of long separation from our past, we need what Holmes called "education in the obvious, more than investigation of the obscure."8 The past may have receded so far into the distance that our perspectives may have been altered and our vision blurred.

When the court in the case at bar required the petitioner to testify, it in effect undid the libertarian gains made over half a century and overturned the settled law. The past was recreated with all its vividness and all its horrors: John Lilburne in England in 1637, refusing to testify before the Council of the Star Chamber and subsequently condemned by it to be whipped and pilloried for his "boldness in refusing to take a legal oath;"9 the Filipino priests Gomez, Burgos and Zamora in 1872 condemned by the Inquisition to die by their own testimony. 10

It is for this reason that I deem this occasion important for the expression of my views on the larger question of constitutional dimension.

No doubt the constitutional provision that "No person shall be compelled to be a witness against himself" 11 may, on occasion, save a guilty man from his just deserts, but it is aimed against a more far reaching evil — recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. 12 As Dean Griswold put the matter with eloquence:.

[T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized ... [W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being. 13

The Government must thus establish guilt by evidence independently and freely secured; it can not by coercion prove a charge against an accused out of his own mouth. 14

This is not what was done here. What was done here was to force the petitioner to take the witness stand and state his part in the crime charged as "star witness for the prosecution," to use the very words of the decision, and, by means of his testimony, prove his guilt. Thus, the trial court said in its decision:

Roger Chavez does not offer any defense. As a matter of fact, his testimony as a witness for the prosecution establishes his guilt beyond reasonable doubt.

The petitioner has been variously described by the trial court as "a car agent ... well versed in this kind of chicanery" "a self-confessed culprit," and "a man with at least two convictions for acts not very different from those charged in [the] information." But if he has thus been described it was on the basis of evidence wrung from his lips. If he was ultimately found guilty of the charge against him it was because of evidence which he was forced to give. In truth he was made the "star witness for the prosecution" against himself.

But neither torture nor an oath nor the threat of punishment such as imprisonment for contempt can be used to compel him to provide the evidence to convict himself. No matter how evil he is, he is still a human being.

The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief,15 is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process, it has been well said, is precisely the historic office of the Great Writ. 16

In many respects, this case is similar to that of Fay v. Noia. 17 Noia was convicted of murder in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, in the killing of one Hemmeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful but subsequent legal proceedings resulted in the releases of Caminito and Bonino upon findings that their confessions had been coerced and their conviction therefore procured in violation of the Fourteenth Amendment. Although Noia's confession was found to have been coerced, the United States District Court for the Southern District of New York held that, because of Noia's failure to

appeal, he must be denied reliefin view of the provision of 28 U.S.C. sec. 2254 that "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. ..." The Court of Appeals for the Second Circuit reversed the judgment of the District Court and ordered Noia's conviction set aside, with direction to discharge him from custody unless given a new trial forthwith. From that judgment the State appealed.

As the Supreme Court of the United States phrased the issue, the "narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court."

In affirming the judgment of the Court of Appeals, the United States Supreme Court, through Mr. Justice Brennan, spoke in enduring language that may well apply to the case of Roger Chavez. Said the Court: 1äwphï1.ñët

Today as always few indeed is the number of State prisoners who eventually win their freedom by means of federal habeas corpus. These few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his co-defendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas Corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

A fitting conclusion of this separate opinion may perhaps be found in two memorable admonitions from Marjorie G. Fribourg and Justice William O. Douglas.

Mrs. Fribourg, in her inimitable phrase, warns us that —

... Time has taught its age-old lesson. Well-meaning people burnt witches. Well-meaning prosecutors have convicted the innocent. Well-meaning objectives espoused by those not grounded in history can lure us from protecting our heritage of equal justice under the law. They can entice us, faster than we like to believe, into endangering our liberties.18

And these are the unforgettable words of Justice Douglas:

The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill - good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty.

x x x           x x x           x x x

The motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never ending one. 1äwphï1.ñët

x x x           x x x           x x x

The liberties of any person are the liberties of all of us.

x x x           x x x           x x x

In short, the liberties of none are safe unless the liberties of all are protected.

But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must observe.19

G.R. No. L-51770 March 20, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FRANCISCO GALIT, defendant-appellant.

 

CONCEPCION, JR., J:

1. The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained and interrogated almost continuously for five days, to no avail. He consistently maintained his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be done. A confession was absolutely necessary. So the investigating officers began to maul him and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A confession must be obtained. So they continued to maltreat and beat him. 'They covered his face with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer. His will had been broken. He admitted what the investigating officers wanted him to admit and he signed the confession they prepared. Later, against his will, he posed for pictures as directed by his investigators, purporting it to be a reenactment.

2. This incident could have happened in a Russian gulag or in Hitler's Germany. But no it did not. It happened in the Philippines. In this case before Us.

3. The Revised Penal Code punishes the maltreatment of prisoners as follows:

ART. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall over do himself in the correction or handling of a prisoner or

detention prisoner under his charge, by the imposition of punishments in a cruel and humiliating manner.

If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos, in addition to his liability for the physical injuries or damage caused.

4. This Court in a long line of decisions over the years, the latest being the case of People vs. Cabrera, 1 has consistently and strongly condemned the practice of maltreating prisoners to extort confessions from them as a grave and unforgivable violation of human rights. But the practice persists. Fortunately, such instances constitute the exception rather than the general rule.

5. Before Us for mandatory review is the death sentence imposed upon the accused Francisco Galit by the Circuit Criminal Court of Pasig, Rizal, in Crim. Case No. CCC-VII-2589 of said court.

6. The record shows that in the morning of August 23, 1977, Mrs. Natividad Fernando, a widow, was found dead in the bedroom of her house located at Barrio Geronimo, Montalban, Rizal, as a result of seven (7) wounds inflicted upon different parts of her body by a blunt instrument. 2 More than two weeks thereafter, police authorities of Montalban picked up the herein accused, Francisco Galit, an ordinary construction worker (pion) living in Marikina, Rizal, on suspicion of the murder. On the following day, however, September 8, 1977, the case was referred to the National Bureau of Investigation (NBI) for further investigation in view of the alleged limited facilities of the Montalban police station. Accordingly, the herein accused was brought to the NBI where he was investigated by a team headed by NBI Agent Carlos Flores. 3 NBI Agent Flores conducted a preliminary interview of the suspect who allegedly gave evasive answers to his questions. 4 But the following day, September 9, 1977, Francisco Galit voluntarily executed a Salaysay admitting participation in the commission of the crime. He implicated Juling Dulay and Pabling Dulay as his companions in the crime. 5 As a result, he was charged with the crime of Robbery with Homicide, in an information filed before the Circuit Criminal Court of Pasig, Rizal, committed as follows:

That on or about the 23rd day of August 1977 in the municipality of Montalban, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Juling Doe and Pabling Doe, whose true Identities and present whereabouts are still unknown and three of them mutually helping and aiding one another, with intent of gain and by means of force, intimidation and violence upon the person of one Natividad Fernando while in her dwelling, did, then and there wilfully, unlawfully, and feloniously take, steal and carry away from the person of said Natividad Fernando, cash money of an undetermined amount, belonging to said Natividad Fernando, thereby causing damage and prejudice to the latter in an undetermined amount; that by reason or on the occasion of said robbery, and for purpose of enabling them (accused) to take, steal and carry away the said cash money in pursuance of their conspiracy and for the purpose of insuring the success of their criminal act, with intent to kill, did, then and there wilfully, unlawfully, and feloniously attack, assault and stab with a dagger said Natividad Fernando on the different parts of her body, thereby inflicting multiple injuries on the head and extremities, which directly caused her death, and the total amount of the loss is P10,000.00 including valuables and cash.

Trial was held, and on August 11, 1978, immediately after the accused had terminated the presentation of his evidence, the trial judge dictated his decision on the case in open court, finding

the accused guilty as charged and sentencing him to suffer the death penalty; to indemnify the heirs of the victim in the sum of P110,000.00, and to pay the costs. Hence, the present recourse.

7. The incriminatory facts of the case, as found by the trial court, are as follows:

From the evidence adduced in this case, it was gathered that in the early morning of August 23, 1977, a 70-year old woman named Natividad Fernando, widow, in the twilight of her life, was robbed and then hacked to death by the accused and two others in her (victim's) own residence at Montalban, Rizal.

Prosecution witness Florentino Valentino testified that he heard accused Francisco Galit and his wife having an argument in connection with the robbery and killing of the victim, Natividad Fernando. It appears that on August 18, 1977, accused Galit and two others, namely, Juling Dulay and a certain "Pabling" accidentally met each other at Marikina, Rizal, and in their conversation, the three agreed to rob Natividad Fernando; that it was further agreed among them to enter the premises of the victim's house at the back yard by climbing over the fence; that once inside the premises, they will search every room, especially the aparador and filing cabinets, with the sole aim of looking for cash money and other valuables.

Witness Valentino further testified that on August 22, 1977, at around 6:00 o'clock in the afternoon, accused Francisco Galit and his two companions, Juling Dulay and Pabling, as per their previous agreement, met at the place where they formerly saw each other in Mariquina, Rizal; that the three conspirators took a jeepney for Montalban and upon passing the Montalban Municipal Building, they stopped and they waited at the side of the road until the hour of midnight; that at about 12:00 o'clock that night, the three repaired to the premises of the victim, Natividad Fernando; that they entered the said premises through the back wall of the house; that while entering the premises of said house, Juling Dulay saw a bolo, lying near the piggery compound, which he picked up and used it to destroy the back portion of the wall of the house; that it was Juling Dulay who first entered the house through the hole that they made, followed by the accused Galit and next to him was "Pabling", that it was already early dawn of August 23, 1977 when the three were able to gain entrance into the house of the victim; as the three could not find anything valuable inside the first room that they entered, Juling Dulay destroyed the screen of the door of the victim, Natividad Fernando; that upon entering the room of the victim, the three accused decided to kill first the victim, Natividad Fernando, before searching the room for valuables; that Juling Dulay, who was then holding the bolo, began hacking the victim, who was then sleeping, and accused Galit heard a moaning sound from the victim; that after the victim was killed, the three accused began searching the room for valuables; that they helped each other in opening the iron cabinet inside the room of the victim, where they found some money; that when the three accused left the room of the victim, they brought with them some papers and pictures which they threw outside; that after killing and robbing the victim, the three accused went out of the premises of the house, using the same way by which they gained entrance, which was through the back portion of the wall; that the three accused walked towards the river bank where they divided the loot that they got from the room of the victim; that their respective shares amount to P70.00 for each of them; and that after receiving their shares of the loot, the three accused left and went home.

When witness Florentino Valentino was in his room, which was adjoining that of accused Francisco Galit, he overheard accused Galit and his wife quarreling about

the intention of accused Galit to leave their residence immediately; that he further stated that he overheard accused Galit saying that he and his other two companions robbed and killed Natividad Fernando.

As a result of the killing, the victim, Natividad Fernando, suffered no less than seven stab wounds. There was massive cerebral hemorrhage and the cause of death was due to shock and hemorrhage, as evidenced by the Medico-Legal Necropsy Report (Exhs. 'C' and 'C-2'), and the pictures taken of the deceased victim (Exhs. 'E', 'E-1' and 'E-2').

8. The accused, upon the other hand, denied participation in the commission of the crime. He claimed that he was in his house in Marikina, Rizal, when the crime was committed in Montalban, Rizal. He also assailed the admissibility of the extra-judicial confession extracted from him through torture, force and intimidation as described earlier, and without the benefit of counsel.

9. After a review of the records, We find that the evidence presented by the prosecution does not support a conviction. In fact, the findings of the trial court relative to the acts attributed to the accused are not supported by competent evidence. The principal prosecution witness, Florentino Valentino merely testified that he and the accused were living together in one house in Marikina, Rizal, on August 23, 1977, because the mother of his wife is the wife of the accused; that when he returned home at about 4:00 o'clock in the morning from the police station of Marikina, Rizal, the accused and his wife were quarreling (nagtatalo); that he heard that the accused was leaving the house because he and his companions had robbed "Aling Nene", the owner of a poultry farm and piggery in Montalban, Rizal; that the wife of the accused was imploring him not to leave, but the latter was insistent; that he saw the accused carrying a bag containing about two handfuls (dakot) of coins which he had taken from Aling Nene; that upon learning of what the accused had done, he went to the Montalban police the next day and reported to the police chief about what he had heard; and that a week later, Montalban policemen went to their house and arrested the accused. 6

10. This Court, in the case of Morales vs. Ponce Enrile, 7 laid down the correct procedure for peace officers to follow when making an arrest and in conducting a custodial investigation, and which We reiterate:

7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

11. There were no eyewitnesses, no property recovered from the accused, no state witnesses, and not even fingerprints of the accused at the scene of the crime. The only evidence against the accused is his alleged confession. It behooves Us therefore to give it a close scrutiny. The statement begins as follows:

I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng Saligang-Batas ng Pilipinas na kung inyong nanaisin ay maaaring hindi kayo magbigay ng isang salaysay, na hindi rin kayo maaaring pilitin o saktan at pangakuan upang magbigay ng naturang salaysay, na anuman ang inyong sasabihin sa pagsisiyasat na ito ay maaaring laban sa inyo sa anumang usapin na maaaring ilahad sa anumang hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin mo ang isang manananggol at kung sakaling hindi mo kayang bayaran ang isang manananggol ay maaaring bigyan ka ng isa ng NBI. Ngayon at alam mo na ang mga ito nakahanda ka bang magbigay ng isang kusang-loob na salaysay sa pagtatanong na ito?

SAGOT: Opo.

12. Such a long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. Accused is from Samar and there is no showing that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not know that he had been brought to the NBI for investigation and it was only about two weeks after he had executed the salaysay that his relatives were allowed to visit him. His statement does not even contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At the supposed reenactment, again accused was not assisted by counsel of his choice. These constitute gross violations of his rights.

13. The alleged confession and the pictures of the supposed re-enactment are inadmissible as evidence because they were obtained in a manner contrary to law.

14. Trial courts are cautioned to look carefully into the circumstances surrounding the taking of any confession, especially where the prisoner claims having been maltreated into giving one. Where there is any doubt as to its voluntariness, the same must be rejected in toto.

15. Let a copy of this decision be furnished the Minister of Justice for whatever action he may deem proper to take against the investigating officers.

16. WHEREFORE, the judgment appealed from should be, as it is hereby, SET ASIDE, and another one entered ACQUITTING the accused Francisco Galit of the crime charged. Let him be released from custody immediately unless held on other charges. With costs de oficio.

17. SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

Aquino, J., took no part.

G.R. No. 71381 November 24, 1986

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CONSTANTINO PECARDAL, accused-appellant.

Renato U. Galimba for accused-appellant.

 

CRUZ, J.:

The accused-appellant stands convicted of the crime of robbery with homicide and has been sentenced to life imprisonment. 1 He asks us to reverse the decision of the trial court because his constitutional rights have been violated.

The victim of the offense was a taxi driver whose body was found in the luggage compartment of his vehicle in the morning of May 27, 1982. He had been stabbed twenty three times with a balisong that had later been left on the dashboard of the car. Apparently, Rogelio Florendo had also been robbed for no money was found on his person or in the taxicab.

It was two months later when the accused-appellant was picked up by the police and questioned in connection with the crime. As a result, an information for the said offense was filed against him and his unidentified co-accused, who was then at large and so was not tried with him.  2

According to the prosecution, Pecardal and his companion boarded the victim's taxicab at about 1 o'clock in the morning of May 27, 1982, and thereafter held him up. When he resisted, they stabbed him in different parts of the body and killed him. They then divested him of his money in the amount of P200.00, placed his body in the luggage compartment of the car, which they drove to and abandoned inYakal Street, Project 3, Amihan, Quezon City. There it was discovered with its grisly occupant that same morning by a barangay tanod. 3

Presented as prosecution witnesses were the victim's wife, Concepcion Florendo, who testified on the civil damages; 4 Dr. Gregorio Blanco, who performed the autopsy on the victim's body; 5 Pat. Teodoro Ybuan, and one of the two policemen who invited" the accused-appellant for investigation. 6

This last witness and Pat. Ernesto Daria declared in a joint affidavit that Pecardal "when questioned readily admitted his participation in the fatal stabbing of victim ROGELIO LORENDO after robbing him of his daily earnings amounting to P200.00; and named EDUARDO AZARCON as his partner in the commission of the said offense. 7

They said they thereafter turned over the accused-appellant to the Quezon City Police Headquarters, where he signed a statement confessing his guilt. The statement described in detail how the offense was committed and was marked as Exhibit "H" at the trial. 8 Significantly, however, it was never specifically offered in evidence by the prosecution.

The prosecution made much of this confession and argued it could not have been made except by the actual perpetrator of the crime because of its detailed narration. Moreover, it had been given by the accused-appellant voluntarily, after he had been apprised of his constitutional rights. 9

The accused-appellant took the stand in his defense mainly to denounce this confession. He testified on the physical punishment inflicted on him by the police investigators that ultimately forced him to sign the statement which he said had been prepared unilaterally by them. 10 This testimony was not rebutted.

In the decision convicting the accused-appellant, 11 the trial judge relied strongly, if not almost mainly, on this confession. This is strange because, to repeat, that piece of evidence was never formally offered by the prosecution or, for that matter even the defense.

This document should never have been considered at all because of Rule 132, Section 35, of the Rules of Court providing as follows:

Sec.35. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

According to Moran, "the offer is necessary because it is the duty of a judge to rest his findings of facts and his judgmentonly and strictly upon the evidence offered by the parties at the trial." 12

In his demurrer to the evidence, the accused-appellant stressed the failure of the prosecution to present this confession, 13 but the prosecutor simply said it was part of its strategy and left it at that. 14

Despite all this, the trial judge referred in his decision to Exhibit "H" as the confession and considered it sufficient basis for the conviction of the accused. As a matter of fact, Exhibit" H " was not the confession but the Police Referral of the case to the City Fiscal of Quezon City dated July 22, 1982. 15

But even assuming that the supposed confession had been formally offered in evidence, we would have to reject it just the same because it violates Section 20, Article IV, of the1973 Constitution.

The undisputed evidence is that the confession was obtained without according to the accused-appellant the right to counsel and after he had been subjected to physical compulsion and maltreatment.

If there was really an interrogation of the accused, the notification of his constitutional rights by the investigating officer was perfunctory and pro forma,intended obviously merely to satisfy the prescribed norms through a recitation by note of the sacramental advise. 16

Although he was supposedly informed of his right to counsel, he was not told he could get one if he so desired or that one could be provided him at his request. It is a matter of record that the interrogation was made in the absence of counsel de parte or de oficio, and that the waiver of counsel, if made at all was not made with the assistance of counsel as required. 17

It is true that the original requirement laid down in Morales v. Enrile 18 was not supported by the majority of eight required by the Constitution. Nonetheless, the doctrine announced therein was later affirmed in People v. Galit, 19 with fourteen members of the Court voting in favor and only one not taking part. The same rule was only recently reiterated in the case of People v. Sison, 20 decided last May.

Besides the lack of counsel, there was the violence the accused claimed was inflicted upon him by the police. According to him, he was undressed, boxed, kicked, hit in the back with a rattan chair, and electric-shocked. 21 Finally, unable to bear the punishment any longer, he agreed to sign the prepared confession which he was not allowed to read. 22 The prosecution did not introduce any witness to refute these allegations.

Surely, a confession obtained under these circumstances cannot stand if we are to obey the mandate of the Constitution, as we must.

It is argued, however, that the accused-appellant orally admitted to Pat. Ybuan and Pat Daria that he had killed and robbed Florendo. This admission was made, according to the two policemen in their joint affidavit, after they apprehended the accused-appellant and started questioning him.

While Pat Ybuan testified that he informed the suspect of his constitutional rights at the time of his arrest, there is no record that the admission was made by him in the presence of counsel, or that he had previously waived counsel.

Additionally, even assuming that the accused-appellant was not yet under custodial investigation at the time and that the requirements of Section 20 were not yet applicable, there is still the question of the credibility of these two policemen.

One may suppose that in an excess of zeal the peace officers might have colored their statement to insure the accused-appellant's conviction. In any event, it is their word against that of the accused-appellant, who disavowed the admission. 23

When the evidence for the prosecution and the evidence for the accused are weighed, the scales must be tipped in favor of the latter. This is because of the constitutional presumption of innocence the accused enjoys as a counterfoil to the awesome authority of the State that is prosecuting him. 24

The element of doubt, if reasonable as in this case, must operate against the inference of guilt the prosecution would draw from its evidence. That evidence,as it happens, consists only of the uncorroborated statement of the two policemen which, as previously observed, is flawed and therefore suspect.

The confession which could have corroborated them was not formally offered by the prosecution. In any case, it is void because it was obtained without the advice or even the presence of counsel, besides having been vitiated by force and threats.

The Solicitor General strongly argues that the supposed confession could not have been made by any one except the perpetrator of the offense because its commission was described in minute detail. Perhaps so. On the other hand, it could have been the work of a creative imagination that concocted all the said details to make a plausible tale against the accused-appellant. The doubt, which we cannot brush aside, is there.

We note that at the time the accused-appellant was apprehended and interrogated, he was only seventeen years old. That is a susceptible age. One can accept how easily a teenager can succumb to the pressure exerted upon him by hardened investigators experienced in extracting confessions through the use of methods less than legal. That pressure was in this case irresistible.

A life has been taken and justice demands that the wrong be redressed. But the same justice that calls for retribution cannot convict the prisoner at bar whose guilt has not been proved. Justitia est duplex, viz., severe puniens et vere praeveniens. Even as this Court must punish, so too must it protect, Conceivably, the conviction of the accused-appellant could add another victim in this case.

WHEREFORE, the appealed decision is REVERSED and the accused-appellant ACQUITTED, with costs de oficio.It is so ordered.

Yap (Chairman), Narvasa, Melencio-Herrera and Feliciano, JJ., concur.

G.R. No. 97936 May 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ALEJANDRO LUCERO y CORTEL, accused-appellant.

 

PUNO, J.:

If the Constitution has any value, it is because it stands up for those who cannot stand up for themselves. Thus, it protected those under custodial investigation with the all-important right to counsel. We hold that the right to counsel cannot be diluted without tampering the scales of justice. For denial of his right to counsel, we acquit accused-appellant.

Alejandro Lucero, Bienvenido Echavez, Balbino Echavez, Peter Doe, Richard Doe and John Doe were charged with the crime of robbery with homicide. The Information against them reads:

That on or about the 7th day of May, 1988, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating with and mutually helping one another , did then and there, wilfully, unlawfully and feloniously rob one DR. DEMETRIO Z. MADRID, in the manner as follows: on the date and in the place aforementioned, the said accused, one armed with handgun, pursuant to their conspiracy blocked the way of the said complainant who was on board a Mercedez Benz crusing along Road 14 near (the) corner (of) Mindanao Avenue, Pag-asa, this City, and did then and there, by means

of violence and intimidation against persons, take, rob and carry away his cash money amounting to P6,600.00; one gold necklace with cross pendant, 7 karat, worth P45,000.00; one (1) gold Rolex watch worth P155,000.00; one (1) 3 karat gold ring worth P80,000.00; one 2 karat gold ring, domino style, worth P27,000.00; one (1) solid gold bracelet worth 363,600.00, Philippine Currency, belonging to said DR. DEMETRIO Z. MADRID, to the damage and prejudice of the said offended party in the total amount aforementioned; that on the occasion of the robbery and pursuant to their conspiracy, the above-named accused, with intent to kill, and taking advantage the(ir) superior strength, with the use of handgun, shot LORENZO BERNALES y ALERIA, a driver of the said offended party, thus inflicting upon him serious and mortal wounds which resulted to the insta(n)taneous death of the said LORENZO BERNALES y ALERIA, to the damage and prejudice of the heirs of said LORENZO BERNALEZ y ALERIA in such amount as may be awarded to them under the provisions of the Civil Code.

Contrary to law. 1

Only the accused Echavez brothers and Alejandro Lucero were apprehended. The others remained at large.

Trial proceeded only as against the three.

The evidence on record shows that on May 6, 1988, private complainant DR. DEMETRIO Z. MADRID spent the night at his boarding house, located at #35 Ilocos Norte Street, Bago-Bantay, Quezon City. He wanted to return that night to his residence at Project 6, Quezon City. However, his driver, Lorenzo Bernales, advised him not to leave that night for Bernales overheard that the group of Balbino and Bienvenido Echavez would rob him on his way home. He heeded the advice.

It was around 7:00 a.m., the next day, that Dr. Madrid again asked his driver to bring him to his main residence in Project 6, Quezon City. While traversing Road 14, a gray-reddish car overtook the Mercedes Benz he was riding and blocked their way. Three (3) men swiftly alighted from the car blocking them and barged into his Benz. The first grabbed the driver's seat and pushed his driver to the other side of the seat. The second occupied the right side of his driver. The third sat beside Dr. Madrid at the back sent and punched him. Simultaneously, the man at the right side of his driver pulled out his gun and announced a hold-up. 2

The man beside Dr. Madrid divested him of the following: a gold Rolex watch, studded with diamonds, worth P155,000.00, a three (3) carat diamond ring worth P80,000.00, another two (2) carat domino-style ring, surrounded with diamonds worth P27,000.00, a necklace worth P27,000.00, a bracelet worth P50,000.00, and his wallet containing P6,600.00. 3

After driving them around the area for a couple of hours, the malefactors stopped his car and alighted. The worst came. The man at the right side of his driver shot the latter at the chest before fleeing. Dr. Madrid and his driver were rushed by concerned citizens to the Veterans Memorial Hospital. Two hours later, his driver died of hemorrhage as a result of the gunshot wound he sustained. 4 Dr. Madrid survived. 5 He reported the incident to the Quezon City police. When no action was taken on his case, he filed his complaint with the Special Operations Group of the Central Intelligence Service (CIS). 6

Two months later, the CIS efforts paid-off. On July 23, 1988, the Special Operations Group headed by Capt. Raul Boac, after a surveillance of the suspects, interrogated Bienvenido Echavez in Camp

Crame. Two days later, they apprehended Balbino Echavez and Alejandro Lucero. They turned them over to the Investigation Department of the CIS. 7

Pfc. Alberto Pursal was assigned to conduct the investigation of the suspects. He declared that even before the investigation started, Lucero verbally admitted his participation in the crime and that he was the one who shot Bernales, the driver of Dr. Madrid. 8

In any event, Pfc. Pursal went thru the motions of investigation. He informed Lucero of his constitutional rights to remain silent and to counsel. When Lucero told him that he had no lawyer, Pursal informed that CIS Legal Department about Lucero's need for a lawyer. 9 In due time, Atty. Diosdado Peralta appeared at the investigator's office at around 9:00 p.m. He identified himself as the lawyer who was requested to assist Lucero and inquired about the latter's whereabouts. He was then directed to where Lucero was.

Atty. Peralta conferred with Lucero. He also apprised Lucero of his constitutional rights. He explained to Lucero that he has the right to remain silent, that he is not obliged to give any statement to the investigators, and that even if he has already given a statement, he may refuse to sign it. He observed no reaction from Lucero. Nonetheless, Atty. Peralta gathered the impression that Lucero understood his advice.

Thereafter, the CIS investigator began taking down Lucero's statement. When the investigator started asking the preliminary questions, Atty. Peralta left to attend the wake of his friend, Capt. Emilio Dacanay, at Fort Bonifacio. He gave word that in case of need, he could be reached at his residence.

The next morning, Lucero was accompanied by two (2) CIS agents to Atty. Peralta's house. The extrajudicial statement of Lucero (Exhibit "C"), was presented to Atty. Peralta. It was already signed by Lucero. In the presence of the two (2) CIS agents, Atty. Peralta examined Exhibit "C" and explained to Lucero its Legal implications. He asked Lucero whether he gave the statements voluntarily. Lucero replied in the affirmative. Atty. Peralta then signed Exhibit "C". 10

The three (3) accused denied complicity in the in the crime charged.

Appellant Lucero's defense is alibi. He testified that on May 7, 1988, he was at his house in Caloocan City. He woke up at 6:30 a.m., stayed at his house the whole day repairing the upholstery of a customer's chair. He was then with his cousin Marcelino Seneta and his wife Mylen Lucero. He worked until 5 p.m. that day.

Lucero was apprehended on July 25, 1988, more than two (2) months after the commission of the crime. He said he was surprised when several unidentified men accosted him while he was walking towards his house. They chased him, handcuffed and blindfolded him and pushed him into a jeep. He was He was blindfolded the whole night and did not know where he was taken. The men turned out to be police officers. Later, he identified one of the men to be Capt. Boak, head of the CIS Special Operations Group.

The next day, he learned he was in Camp Crame. He claimed that he was tortured. He was not informed of the offense for which he was being investigated. Neither did they reveal the identity of the complainant. A couple of days lapsed and a CIS agent brought him to a clinic inside Camp Crame. The doctor saw the contusions on his body. He advised that he be treated. The CIS agent refused and they left the clinic.

Lucero denied knowing Dr. Madrid, the Echavez brothers and the other accused in this case. He said he only met Dr. Madrid at the CIS Office during the police line-up. He was made to line-up four (4) times before Dr. Madrid finally identified him on the fourth time.

Lucero also claimed he signed the extrajudicial confession (Exhibit "C") 11 under duress. He denied engaging the services of Atty. Peralta. He likewise confirmed that Atty. Peralta was not present during his actual custodial interrogation. 12

After trial, the court a quo acquitted the Echavez brothers for insufficient evidence. The trial court, however, convicted accused Lucero. The dispositive portion of the Decision 13 reads:

ACCORDINGLY, judgment is hereby rendered as follows:

1. The accused brothers BIENVENIDO ECHAVEZ y VALIDA and BALBINO ECHAVEZ y VALIDA are hereby ACQUITTED for insufficiency of evidence; and

2. Accused ALEJANDRO LUCERO y CORTEL is hereby found GUILTY beyond reasonable doubt as principal by direct participation of Robbery with Homicide. Alejandro Lucero is hereby sentenced to suffer an imprisonment term of RECLUSION PERPETUA.

On the civil aspect, Alejandro Lucero is hereby ordered a) to pay the heirs of the deceased victim Lorenzo Bernales y Aleria the sum of P30,000.00 as actual damages and P50,000.00 as moral damages for the mental anguish suffered by his family; and b) to pay Dr. Demetrio Z. Madrid the sum of P363,600.00 representing the cash money, and money value of the jewelries and wristwatch he lost due to the robbery at bar.

SO ORDERED. 14

Hence this appeal by Lucero, raising the following assignments of error:

1. THE LOWER COURT ERRED IN GIVING MORE WEIGHT TO THE EVIDENCES (SIC) OF THE PROSECUTION WHICH WERE INCONSISTENT, NOT CREDIBLE, UNRELIABLE, DOUBTFUL AND INSUFFICIENT TO SUPPORT ACCUSED-APPELLANT'S CONVICTION BEYOND REASONABLE DOUBT.

2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OF THE ALLEGED CRIME OF ROBBERY WITH HOMICIDE INSPITE OF THE FACT THAT CONSPIRACY WAS NOT PROVEN IN THIS CASE.

3. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED ON THE BASIS OF HIS ALLEGED EXTRAJUDICIAL CONFESSION (MADE IN CUSTODIAL INVESTIGATION) WHICH WAS OBTAINED THRU FORCE, VIOLENCE AND WITHOUT THE PRESENCE OF COUNSEL OF HIS OWN CHOICE OR ENGAGED BY ANY PERSON ON HIS BEHALF OR APPOINTED BY THE LOWER COURT AND THEREFORE SUFFERED CONSTITUTIONAL INFIRMITIES.

4 THAT THE LOWER ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED INSPITE OF THE FACT THAT THE ACCUSED-APPELLANT WAS NOT POSITIVELY IDENTIFIED WITH CERTITUDE BY THE PROSECUTION.

5. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED PRIMARILY ON THE BASIS OF THE WEAKNESS OF HIS DEFENSE OF ALIBI AND NOT ON THE STRENGTH OF THE PROSECUTION EVIDENCE; AND INSPITE OF THE LACK OF POSITIVE IDENTIFICATION OF ACCUSED-APPELLANT.

6. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT AND NOT ACQUITTING HIM LIKE HIS CO-ACCUSED AND ALLEGED CO-CONSPIRATORS [THE ECHAVEZ BROTHERS] OF THE CRIME CHARGED.

We find the appeal meritorious.

The conviction of appellant rests on two (2) facts: (a) his positive identification by the complainant, and (b) his extra-judicial confession admitting his participation in the crime. We find that the evidence proving these facts cannot stand scrutiny.

Firstly, the credibility of the main prosecution eyewitness, Dr. Demetrio Madrid who identified appellant, is seriously open to doubt. It stands unrebutted on the record that appellant had to participate at the police line-up four (4) times before he was finally identified by Dr. Madrid. There is no reason for the ambivalence. The robbery took place in broad daylight and the three malefactors wore no mask. They drove them around for three (3) hours. Considering these circumstances, there is no reason for Dr. Madrid's failure to immediately identify appellant.

We are also disconcerted by the vacillating testimony of Dr. Madrid during the trial. Initially, Dr. Madrid claimed that he could identify only one of the robbers who staged the hold-up. 15 At another point, Dr. Madrid said he could identify two of the malefactors. 16 In his affidavit, Dr. Madrid presented he could identify all three. 17 Appellant's conviction cannot be made to rest on this nebulous identification by Dr. Madrid.

Secondly, appellant's conviction cannot be based on his extra-judicial confession.

The 1987 Constitution 18 requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. 19 We take pride in constitutionalizing this right to counsel even while other countries have desisted from elevating this right to a higher pedestal. We have sustained the inviolability of this precious right with vigor and without any apology.

The trial court did not display the required sensitivity to appellant's right to counsel. Indeed, it did not impose a rigorous respect for the right. It was satisfied that there was "substantial" compliance with the requirements of right to counsel. This is far from the intent of the Constitution. The records show that Atty. Peralta's, who was not the counsel of choice of appellant, arrived at the CIS Office an the second night of appellant's detention. More exactly, he arrived at the CIS Office at around 9:00 p.m. and talked with appellant about his rights. Atty. Peralta himself admitted he received no reaction from appellant although his impression was that appellant understood him. 20Worse, Atty. Peralta left appellant in the custody of the CIS agents when his real interrogation started. He said he had to attend the wake of a friend. His attitude did not speak well of the importance he gave to his role as

counsel to a person under custodial interrogation for the commission of a very serious offense. It was during his absence that appellant gave an uncounselled confession. They tried to cure his uncounselled confession for the next day, appellant was brought by two (2) CIS agents to Atty. Peralta's house. In the presence of these agents, Atty. Peralta asked appellant if he understood the statements he gave and if he signed it voluntarily. Appellant, of course, affirmed the voluntariness of the execution of the confession. Atty. Peralta was satisfied and the trial court ruled that appellant's right to counsel was not infringed. We disagree.

We hold that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The circumstances in the case at bench clearly demonstrate that appellant received no effective counseling from Atty. Peralta. In People v. De Guzman, 21 we held that in custodial investigation, the right to counsel attaches from the moment the investigation starts, i.e., when the investigating officer starts to ask questions to elicit information and confessions or admissions from the accused. In this case, at the crucial point when the interrogation was just starting, Atty. Peralta left appellant to attend the wake of a friend . At that critical stage, appellant gave his uncounselled extra-judicial a confession. Surely, such a confession where appellant was unprotected from mischief cannot convict.

Neither can the trial court convict appellant on the ground that alibi is inherently a weak defense. Chiseled in our jurisprudence is the rule that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Given the uncertainty of appellant's identification and the inadmissibility of his uncounselled confession, there is no thread of evidence to criminally inculpate appellant.

IN VIEW WHEREOF, the Decision in Criminal Case No. Q-88-201 of the Regional Trial Court of Quezon City , Branch CIII, convicting appellant Alejandro Lucero y Cortel of robbery with homicide is hereby REVERSED AND SET ASIDE.

SO ORDERED.

Narvasa, C.J., Regalado and Mendoza, JJ., concur.