G.R. No. 80066 May 24, 1988

THE PEOPLE OF THE PHILIPPINES,petitioner,vs.HON. MAXIMIANO ASUNCION, as Presiding Judge, Branch 104, Regional Trial Court, National Capital Judicial Region, Quezon City, and ROLANDO ABADILLA,respondents.

PADILLA,J.:

Petition for review on certiorari of the Resolution issued by the respondent Judge on 1 September 1987, which dismissed the Information filed in Criminal Case No. Q-53382 of the Regional Trial Court, filing NCJR Quezon City, entitled: "People of the Philippines, plaintiff,versusRolando Abadilla, accused," for Violation of Pres. Decree No. 1866 (Illegal Possession of Firearms and Ammunition), and the Order issued on 25 September 1987, which denied petitioner's motion for reconsideration of said Resolution.

On 30 July 1987, Rolando Abadina, a former colonel of the Armed Forces of the Philippines, was charged before the Relations regional Trial Court, filing NCJR Quezon City, with the offense of Violation of Pres. Decree No. 1866 [Megal Possession of Firearms and Ammunition) in an Information, docketed therein as Criminal Case filing N Q-53382, which reads as follows:

The undersigned Assistant City Fiscal accuses ROLANDO ABADILLA of the crime of Violation of Presidential Decree No. 1866, committed as follows:

That on about 27th day of July 1987, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, filing chd then and there, filing wiuwly unlawfully and feloniously have in his possession and under his custody and control the following:

a. Sterling Assault Rifle, filing SMG 9mm, MK5, filing L34Al No. 1024 SN-Defaced filing

b. Armalite Rifle, M16 SN-RP137912 filing

c. Carbine, Cal. 30 M2, SN-1052937 filing

d. Cal 357 Revolver, Smith & Wesson SN-187K589 filing

e. Cal 45, Pistol, Colt, SNO-7OG26301

f. Ammunitions and magazines defiling bed as follows:

1. Two filing tho dfiling filing pes (2,000) of Cal. 5.56 filing mm ammos;

2. Seventy-four (74) filing rds of Cal. 50 ammos;

3. Thirty (30) filing rds of Cal. 9mm ammos;

4. Twenty-eight (28) filing rds of Cal. 30 ammos;

5. filing Rve (5) filing rds of 20 gauge ammos;

6. Two hundred-ninety (290) pcs. of spent shells for Magnum num 44 and 38 Special;

7. One hundred sixty-six (166) slugs for Magnum 44;

8. One (1) pcs. magazine for Sterling Rifle (long);

9. One (1) pcs. magazine for filing Ml 6 rifle (long); and

10. One (1) pcs. magazine for Carbine rifle (long)

without first securing the necessary license and/or permit from the lawful authority.1

Upon motion of the accused, the respondent judge, as aforestated, in a Resolution dated 1 September 1987, dismissed the Information on the ground that it did not allege sufficient facts to constitute an offense, since the possession of loose firearms and explosives is not illegalper se,in view of Executive Order No. 107 which gives holders or possessors of unlicensed firearms and ammunition a period of six (6) months from its effectivity, extended to 31 December 1987 by Executive Order No. 222, within which to surrender the same to the proper authorities, without incurring any criminal liability therefor, except if the unlicensed firearm or ammunition is carried outside of one's residence, not for the purpose of surrendering the same, or used in the commission of any other offense, and there is no allegation in said information that the firearms and ammunition enumerated therein were carried outside the accused's residence or used in the commission of some other crime. In support thereof, the respondent judge cited the decision inPeople vs. Lopez, 79 Phil 658.2

The prosecution filed a motion for reconsideration of said Resolution, but the motion was denied in an Order dated 25 September 1987.3

Hence, the present recourse by the prosecution.

1. The petitioner claims that the respondent judge erred in hooding that the possession of loose firearms and explosives is not illegalper seduring the period covered by Executive Orders Nos. 107 and 222. The petitioner argues that nothing is contained in said executive orders which legalizes the possession of firearms and ammunition without a permit; that said executive orders merely authorized holders or possessors of unlicensed firearms and ammunition to surrender the same within a specified filing perioki without incurring criminal liability; and that illegal possession of firearms and ammunition is still penalized under Pres. Decree No. 1866 which was not repealed by said Executive Order Nos. 107 and 222.

It may be true that there is nothing in Executive Orders Nos. 107 and 222 that expressly legalizes the unlicensed possession of firearms and ammunition, but this Court, applying statutes4similar to the executive orders in question, and which also provided for a period within which a holder or possessor of unlicensed firearms and ammunition may surrender the same to the proper authorities without incurring criminal liability, had ruled that a criminal hability was temporarily filing hfted for mere possession' of unlicensed firearms and ammunition during the period covered, although such person is not exempt from criminal liability filing within the period provided, he carries the firearm and ammunition (unless it is for the purpose of surrendering the same) or he commits any other offense with the use of such unlicensed firearm and ammunition. Thus, inPeople vs. Lopez,5the Court said:

Section 1 of Republic Act No. 4, which is the last enactment on the subject, makes it unlawful to manufacture, dispose, sell, acquire, possess, etc. firearms and ammunition. However, this provision was qualified by section 2 which is as follows:

SEC. 2. The provisions of the foregoing section to the contrary notwithstanding, any person in possession of any of the prohibited articles therein mentioned, may, without incurring any criminal hability, surrender the same to such officer and within such period of time as the President shall by proclamation designate and fix immediately upon the approval of this Act:Provided, however, That this section shall not be interpreted to mean as in any way exempting from such liability any person, without the requisite license, found, within the aforementioned period of time, making use of any of said articles, except in self-defense, or carrying them on his person except for the purpose of surrendering them as herein required: Provided,further, That this section shall not in any way affect any case pending in court, on the date of the passage of this Act, for violation of section twenty-six hundred and ninety-two of the Revised Administrative Code; andProvided, lastly, That the President may authorize any officer or agency of the Government to issue to the persons surrendering their firearms temporary licenses therefor for period not exceeding three months at a time.

In pursuance of filing tws provision the President issued Proclamation No. 1, dated July 20, 1946, finding August 31, 1946, as the last day, in the provinces of Luzon on which to surrender articles described in section 1 without incurring criminal liability.

It will be seen that section 2 excluded from the operation of section 1 up to August 31, 1946, possession of firearms and ammunition so long as they were not used for any purpose other than self-defense or carried for any purpose other than of surrendering them to the proper authorities. The Government does not dispute this interpretation. Although the law does not categorically state that criminal liability was temporarily lifted for mere possession of filing firegems and ammunition, that is the only construction compatible with the spirit and purposes of the enactment as revealed by its context.

Moreover, inPeople vs. Feliciano,6the Court ruled that Republic Act No. 482 legalized mere unlicensed possession of firearms and ammunition for the limited period specified in said law, and punished only (1) the use of unlicensed firearm or ammunition, or (2) the carrying of such firearm or ammunition on the person, except to surrender them. The Court said:

In the early morning of June 10, 1950, Constabulary Sergeant Roman Arao conducted a search in the house of Mamba located in the poblacion of Tuazon Cagayan' in the course of which he found under the pillow of the appellant a revolver, caliber .45, with three rounds of ammunition. It is not necessary to take up appellant's argument that there is absolutely no proof that he had no permit or license to possess the articles in question, because the other contention that the appellant is not hable in view of Republic Act No. 482, is correct. This Act, in section 1, provides that an unlicensed holder or possessor of any firearm or ammunition may, without incurring criminal hability, surrender the same within the period of one year from the date the Act took effect (June 10, 1950), but that such unlicensed holder or point filing r is not exempted if found within said period making use of the firearm and ammunition or them on his person except for purposes of surrender. The statute in effect, legalizing mere unlicensed possession for a limited period, punishes only (1) using a firearm or ammunition or (2) carrying the same on the person except to give them up. The appellant was not charged with any of these two acts.

This rulling was reiterated inPeople vs. Tabunares,7wherein the Court said:

In the very recent case ofPeople vs. Feliciano(supra, p. 688) we ruled that Republic Act No. 482, approved on June 10, 1950, in effect legalized mere unlicensed on within one year from said date, and punished only (1) the use of a or ammunition or (2) the carriage thereof on the person except for purpose of surrender. Appellant's conviction cannot stand, since it is rested solely on unlicensed possession on or about November 6, 1950.

Executive Order No. 107, as amended by Executive Order No. 222, is similar to Republic Acts Nos. 4 and 482. We are not prepared, nor are we justified, to give it a different meaning because there is no basis for such a difference.

2. The petitioner claims that it was not necessary for the prosecution to allege in the information that the firearms and ammunition, subject matter of this case, were brought out of the residence of the accused or were used by him in the commission or another offense, since these circumstances are not essential ingredients of the crime of illegal possession of firearms and ammunition.

The contention is without merit. InPeople vs. Lopez,8the Court already ruled that, under Republic Act No. 4, the use or the carrying of firearms and/or ammunition was an ingredient, if not the sole ingredient, of the offense; i.e. the very acts which were punished, subject to certain conditions, and hence, should be alleged and proved.

InPeople vs. Austria,9the Court also ruled that in order that an information charging illegal possession of firearm and ammunition, under Republic Act No. 482, may be deemed suffident, it must allege that the accused was using the unlicensed firearm or carrying it in his person at the time he was apprehended by the authorities with said firearm. Said the Court.

It should be noted that the court dismissed the first case for illegal possession of firearm upon the sole ground that the information die not conceivable facts filing sufedent to constitute an offense. Bear in mind that information was filed in connection with Republic Act No. 482 which exempts from liability persons found in filing sion of unlicensed unless the firearm is used or carried in his person by the possessor. And we already held in a recent case that in order that an information under that Act may be deemed sufficient it must allege that the accused was the unlicensed firearm or carrying it in his person at the time he was caught by the authorities with the unlicensed weapon (People vs. Santos Lopez y Jacinto, G.R. No. L-1603, November 29, 1947, 79 Phil. 658). And these essential allegations not having been averred in the information, the court rightly as the case on the ground that the information did not allege facts Buffident to constitute an offense.

The cases ofU.S. vs. Chan Toco,10People vs. Cadabia,11andPeople vs. San Juan12cannot be on y invoked by the petitioner. The law involved in the case at bar is not of the same filing elms of laws involved in said cases which referred to violation of the Opium Law and the filing Elwdon Code. InPeople vs. Lopez,13the Court said:

Courts and text writers are not m. exact agreement on when the filing must negative the "options in a penal law; that is, when 'it is necessary to in the indictment that the defendant does no filing t come within the exception, or to negative the province it contains. "In U.S. vs. Chan Toco(12 Phil. 262), the Court this question and pertinent authorities at length. filing kt reached the filing for filing smoking opium, that "whom one is charged with 'a violation of the general provisions of the Opium Law, it is "more logical as well above more practical and convenient," if he did in fact smoke opium under the advice of a physically that he should set up them fact by way of defense, than that the on should be called upon to prove that every smoker, charged with a violation of the law, does so 'without such advice or prescription.

However, that point is not here. The law involved in the case at bar is not of the class of laws referred to in the foregoing decision. The matters which the information now before us has failed to allege were not exceptions to a provision defining an offense. They were not such exceptions as under theU.S. vs. Chan Tocodoctrine should have been averred or proved as a defense. Under filing Republic Act No. 4, the use or the carrying of firearms and/or ammunition was an ingredient, if it was not the solement, of the offense, the very will which were punished subject to certain conditions. It has been seen that mere possession or custody of any of the article specified in the act filing viitjun the time designated m. the processes was not illegal unless filing r made use of them or carried them on his person. What the accused could have been obliged to allege and prove, if he had been prosecuted for ubing or carrying on filing hm person a was that he defended himself the arm or was on his way to give it up, as the case might be.

3. Finally, the petitioner contends that under the allegation in the information filing t the accused without any authority of law, did then and there filing y unlawfully and filing feloiaiously have m. his posseamon and under his custody and control the firearms and ammunition enumerated therein, prosecution may prove that the accused earned the firearms and ammunition outside of his residence.

The contention is without merit. As the Court had stated inPeople vs. Austria,14the presentation of evidence "cannot have the effect of validating a void information, or proving an offense which does not legally exist. ... The information was not merely defective but it does not charge any offense at all. Technically speaking, that information does not exist in contemplation of law."

The Court is not unaware that accuse-respondent Abadilla, rightly or wrongly, is Identified with the violent arm of the past regime. To many, he is regarded with unusual ease and facility as the "hit man" of that regime. The Court, however, is not swayed by appellations or approbriums. Its duty, as a temple of justice, is to accord to every man who comes before it in appropriate proceedings the right to due process and the equal protection of the laws.

The information,in this particular charge against accused-respondent Abadilla, is fatally defective. It would be fatally defective against any other accused charged with the same offense. Respondent judge, in dismissal the information, committed no reversible error or grave abuse of discretion. He acted correctly.

WHEREFORE, the petition is DENIED. The orders appealed from are hereby AFFIRMED. Without costs.

G.R. No. L-25795 October 29, 1966

ANGELINA MEJIA LOPEZ, AURORA MEJIA VILLASOR, ROY P. VILLASOR,petitioners,vs.THE CITY JUDGE, CESAR L. PARAS, TRINIDAD T. LAZATIN, and TERRA DEVELOPMENT CORPORATION,respondents.

DIZON,J.:

In the month of February 1964, petitioners Roy P. Villasor, as administrator of the intestate estate of the spouses Manuel M. Mejia and Gloria Lazatin (Special Proceedings No. 48181 of the Court of First Instance of Manila), together with his co-petitioners Angelina Mejia Lopez and Aurora Mejia Villasor and other heirs of said spouses, entered into a contract with respondent Trinidad T. Lazatin for the development and subdivision of three parcels of land belonging to said intestate estate. Subsequently Lazatin transferred his rights under the contract to the Terra Development Corporation. Months later, petitioners and other co-heirs filed an action in the Court of First Instance of Quezon City (Civil Case No. Q-8344) for the rescission of said contract for alleged gross and willful violation of its terms. Thereafter, Lazatin and the Terra Development Corporation, in turn, filed with the Fiscal's Office of the City of Angeles a complaint against petitioners for an alleged violation of the provisions of Article 172 in relation to those of Article 171, paragraph 4, of the Revised Penal Code. After conducting a preliminary examination in connection therewith, the City Fiscal of Angeles filed with the Court of said City an information charging petitioners with the crime of falsification of a private document upon the allegation that they made it appear in the contract mentioned heretofore that Aurora M. Villasor was the "guardian" of the minor George L. Mejia and that Angelina M. Lopez was similarly the "guardian" of the minor Alexander L. Mejia, when in truth and in fact they knew that they were not the guardians of said minors on the date of the execution of the document (Criminal Case No. C-2268).

Upon petition of the parties thus charged, the City Fiscal of Angeles reinvestigated the case on March 7, 1965 to give them an opportunity to present exculpatory evidence, and after the conclusion of the reinvestigation the parties charged moved for the dismissal of the case mainly on the ground that the City Court of Angeles had no jurisdiction over the offense because the private document that contained the alleged false statement of fact was signed by them outside the territorial limits of said city. As the resolution of this motion to dismiss was delayed and in the meantime the City Court had set Criminal Case No. C-2268 for arraignment, the defendants secured from said court several postponements of the arraignment.

Finally, in view of the City Fiscal's continued failure to act on the motion to dismiss the case, petitioners filed on November 26, 1965 with the City Court a motion to quash upon the ground that said court had no jurisdiction over the offense charged. The complainants in the case with the conformity of the City Fiscal filed an opposition thereto, and on February 3, 1966 the respondent judge denied said motion to quash and reset the arraignment of all the defendants on March 5 of the same year. In view thereof, petitioners filed the present action forcertiorariand prohibition.

Upon the foregoing facts the only question to be resolved is whether or not the City Court of Angeles City has jurisdiction to try and decide Criminal Case No. C-2268 for alleged falsification of a private document by the parties named in the information.

It is clear that petitioners are not charged with havingused a falsified document, in violation of the last paragraph of Article 172 of the Revised Penal Code. The charge against them is that of having falsified a private document by knowingly and willfully stating therein that Aurora M. Villasor and Angelina M. Lopez were the "guardians" of their minor brothers George and Alexander, respectively, when in fact they knew that, at the time they made such written statement, it was Carolina M. de Castro who was the judicial guardian of said minors.

It is settled law in criminal actions that the place where the criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction (U.S. vs. Pagdayuman 5 Phil. 265). Thus, under the provisions of Section 86 of the Judiciary Act of 1948, municipal courts have original jurisdiction only over criminal offenses committed within their respective territorial jurisdiction.

In the present case, it is the claim of petitioners a claim supported by the record that Angelina M. Lopez and Aurora M. Villasor signed the private document wherein they are alleged to have made a false statement of fact, the first within the territorial jurisdiction of Makati, and the second within the territorial jurisdiction of Quezon City, both within the province of Rizal.

We now come to consider the question of when and where is the offense of falsification of a private document deemed consummated or committed. Upon this point, We have ruled clearly and definitely in U.S. vs. Infante, 36 Phil. 146, that the crime of falsification of a private document defined and penalized by Article 304 of the Penal Code (now paragraph 2, Article 172 of the Revised Penal Code) is consummated when such document is actually falsified with the intent to prejudice a third person, whether such falsified document is or is not thereafter put to the illegal use for which it was intended.

Again in U.S. vs. Barretto, 36 Phil. p. 207, We said:

. . . The contention of counsel would seem to be that the information was defective, in that it fails to set forth expressly the place where improper and illegal use was made of the falsified document, an allegation which counsel for appellant insists was absolutely essential for the proper determination of the court clothed with jurisdiction over the alleged offense. But under the definition of the crime of falsification of a private document as set forth in Article 304 of the Penal Code, the offense is consummated at the time when and at the place where the document is falsified to the prejudice of or with the intent to prejudice a third person, and this whether the falsified document is or is not put to the improper or illegal use for which it was intended. It is evident, therefore, that the place where the crime is committed is the place where the document is actually falsified, and that the improper or illegal use of the document thereafter is in no wise a material or essential element of the crime of falsification of a private document; . . . .

Applying the above ruling to the facts before Us, it would appear that if the private document subject of the information was falsified by the persons therein charged, the act of falsification the signing of the document and the coetaneous intent to cause damage was committed and consummated outside the territorial jurisdiction of the City of Angeles, and that whether the falsified private document was thereafter put or not put to the illegal use for which it was intended, or was signed by the other contracting party within the territorial jurisdiction of the City of Angeles is in no wise a material or essential element of the crime of falsification of the private document, nor could it in any way change the fact that the act of falsification charged was committed outside the territorial jurisdiction of Angeles City. Thus, that the City Court of Angeles has, no jurisdiction over the offense charged is beyond question.

Respondents, however, contend that the motion to quash filed by the defendants necessarily assumes the truth of the allegation of the information to the effect that the offense was committed within the territorial jurisdiction of Angeles City and that they may not be allowed to disprove this at this early stage of the proceedings. This is not exactly the law on the matter at present. It was the law applicable to ademurrer now obsolete to an information. The motion to quash now provided for in Rule 117 of the Rules of Court is manifestly broader in scope than the demurrer, as it is not limited to defects apparent upon the face of the complaint or information but extends to issues arising out of extraneous facts, as shown by the circumstance that, among the grounds for a motion to quash, Section 2 of said Rule provides for former jeopardy or acquittal, extinction of criminal action or liability, insanity of the accused etc., which necessarily involve questions of fact in the determination of which a preliminary trial is required.

In the present case, the portion of the record of the reinvestigation which was submitted to the respondent judge for consideration in connection with the resolution of the motion to quash filed by the defendants shows beyond question that the offense charged was committed far beyond the territorial jurisdiction of Angeles City.

On the propriety of the writs prayed for, it may be said that, as a general rule, a court of equity will not issue a writ of certiorari to annul an order of a lower court denying a motion to quash, nor issue a writ of prohibition to prevent said court from proceeding with the case after such denial, it being the rule that upon such denial the defendant should enter his plea of not guilty and go to trial and, if convicted, raise on appeal the same legal questions covered by his motion to quash. In this as well as in other jurisdictions however, this is no longer the hard and fast rule.

The writs ofcertiorariand prohibition, as extra-ordinary legal remedies, are, in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, inYu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition forcertiorariand prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare and the advancement of public policy. InDimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And inArevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time.

More recently, We said the following inYap vs. the Hon. D. Lutero, etc.,G.R. No. L-12669, April 30, 1959:

Manifestly, the denial, by respondent herein, of the motion to quash the information in case No. 16443, may not be characterized as "arbitrary" or "despotic", or to be regarded as amounting to "lack of jurisdiction". The proper procedure, in the event of denial of a motion to quash, is for the accused, upon arraignment, to plead not guilty and reiterate his defense of former jeopardy, and, in case of conviction, to appeal therefrom, upon the ground that he has been twice put in jeopardy of punishment, either for the same offense, or for the same act, as the case may be. However, were we to require adherence to this pretense, the case at bar would have to be dismissed and petitioner required to go through the inconvenience, not to say the mental agony and torture, of submitting himself to trial on the merits in case No. 16443, apart from the expenses incidental thereto, despite the fact that his trial and conviction therein would violate one of his constitutional rights, and that, on appeal to this Court, we would, therefore, have to set aside the judgment of conviction of the lower court. This would, obviously, be most unfair and unjust. Under the circumstances obtaining in the present case, the flaw in the procedure followed by petitioner herein may be overlooked, in the interest of a more enlightened and substantial justice.

Indeed, the lack of jurisdiction of the City Court of Angeles over the criminal offense charged being patent, it would be highly unfair to compel the parties charged to undergo trial in said court and suffer all the embarrassment and mental anguish that go with it.

WHEREFORE, judgment is hereby rendered declaring that the offense charged in the information filed in Criminal Case No. C-2268 of the City Court of Angeles City is not within the jurisdiction of said court and that, therefore, said court is hereby restrained and prohibited from further proceedings therein. Costs against the private respondents.

[G.R. No. 96229. March 25, 1997]PEOPLE OF THE PHILIPPINES,petitioner,vs. HON. GLORIOSA S. NAVARRO, as Presiding Judge, Regional Trial Court, Branch 20, Naga City,respondent.

D E C I S I O N

PANGANIBAN, J.:

In remanding the complaint or information to the provincial prosecutor, may a regional trial court judge name or designate aparticularassistant prosecutor to conduct the preliminary investigation of the case?

This is the main question raised in this special civil action forcertiorariunder Rule 65 of the Rules of Court assailing the Order dated June 18, 1990, as well as the other orders dated July 6, 1990, August 28, 1990 and September 6, 1990 issued by Respondent Judge Gloriosa S. Navarro.[1]The impugned Order dated June 18, 1990, the tenor of which was repeated in the subsequent orders, specifically directed Assistant Prosecutor Novelita Villegas-Llaguno to conduct the preliminary investigation on a criminal case for qualified theft filed against a minor, Carlos Barbosa Jr.

The pertinent text of the challenged Order dated June 18, 1990, reads:[2]

The records will show that the complaint was directly filed with the Regional Trial Court by TSG Jose Sanchez of the Philippine Constabulary and subsequently raffled to this Court.

Prov. Pros. Lirag on his part admitted the error committed by Asst. Pros. Cajot in dismissing this case.In fact when it came to his knowledge he directed Prosecutor Cajot to return the case to the court with the necessary Motion to Dismiss as it is only the Court which can order the dismissal of the case and the release of the accused.However, Pros. Lirag made an observation alleging that while he does not condone the action taken by Prosecutor Cajot, as it not in accord with the present practice and procedure, yet he sees merit in the action taken by Pros. Cajot as it allegedly contributed to the speedy disposition of cases.Such observation is without any legal basis considering the fact that speedy disposition of cases does not include undue haste and disregard of the practice and procedure precisely adopted to insure due process.Obviously, his directive was not complied with by Pros. Cajot.

On the part of Pros. Cajot, he contended that in dismissing this case he relied in (sic) Sec. 5, of Rule 112 of the 1985 Rules of Criminal Procedure, forgetting however that such provision is applicable only to cases forwarded to the office of the fiscal from the lower court which conducted the preliminary investigation and not to cases already filed with theRRegional (sic) Trial Court.Moreover, the case of Quinto v. Villaluz cited by Pros. Cajot is not in point considering that it involved the lack of jurisdiction of the CFI because the complaint involving the same case was previously filed with the Circuit Criminal Court.Likewise, the doctrine in the case of Salcedo vs. Suarez is off tangent.

It appearing therefore that the dismissal of this case without any preliminary investigation conducted was improper being contrary to the doctrine enunciated in Crespo v. Mogul (151 SCRA 462) andSt. (sic) Rosa Mining v. Asst. Prov. Fiscal of Dagupan (153 SCRA 367, theorder (sic) of dismissal dated March 21, 1990 is set aside.Consequently, Asst. Pros. Llaguno who is assigned to this Court is ordered to conduct a preliminary investigation in accordance with the Rules within 15 days from receipt of this order.

SO ORDERED.The Facts

The facts are undisputed and are narrated with clarity in the petition before us,[3]as follows:

On February 20, 1990, T/Sgt. Jose V. Sanchez, PC Investigator, 244th PC Company in Concepcion Grande, Naga City filed acomplaint for qualified theftdirectly with the Regional Trial Court of Naga City against minor Carlos Barbosa.

Subsequently, the Public Attorneys Office, as counsel for the respondent Barbosa, filed a Motion to Quash the Complaint on the ground that Sgt. Sanchez is not authorized to file a complaint or information in Court.

Judge Gregorio Manio, Jr., as presiding judge in Branch 19, Regional Trial Court and the pairing judge of the respondent, issued an order[4]remanding the case for preliminary investigation and assigned the adjudication thereof to Prosecutor Salvador Cajot.[5]

Before Prosecutor Cajot could conduct the required preliminary investigation, Sgt. Sanchez filed a motion to withdraw the complaint with the Prosecution Office.

Acting on said motion, Prosecutor Cajot issued an Order[6]dated March 21, 1990 and approved by the Provincial Prosecutor, granting the motion to withdraw the complaint and ordering the release of the accused from detention.A copy of said Order was furnished the Regional Trial Court.

On June 6, 1990, respondent Judge Gloriosa Navarro ordered[7]the Provincial Prosecutor and Prosecutor Cajot to explain why they encroached on the jurisdiction of the court over the case. On June 7, 1990, the Provincial Prosecutor filed his explanation.[8]

On June 13, 1990, (P)rosecutor Salvador G. Cajot filed his explanation[9]asserting the jurisdiction of the prosecutors office in the conduct of preliminary investigation and that when the court ordered that the records of the case be remanded to the Office of the Prosecutor to conduct the preliminary investigation, the court divested itself of its control and jurisdiction over the case.

On June 18, 1990, the Honorable Judge Gloriosa S. Navarro issued an Order setting aside the Order of Prosecutor Cajot dated March 21, 1990 and ordered[10]Assistant Prosecutor Novelita Llaguno, who was appearing in her sala, to conduct the required preliminary investigation.

On June 29, 1990, Prosecutor Llaguno filed a motion for reconsideration[11]taking exception to the Order dated June 18, 1990 on the ground that any resolution she may issue might run counter with the previous order of her superiors and thus render office policies disorganized, procedures disorderly and chaotic, resulting to the embarrassment of the administration of justicex x x.

On July 4, 1990, Prosecutor Cajot filed a motion for reconsideration[12]alleging among others, (that:) (a)(h)e did not issue an order of dismissal but an order granting the motion to withdraw.There is, therefore, no more complaint to speak of before the court; (b)(t)he prosecutor, in conducting the preliminary investigation, has the exclusive power and authority to dismiss the complaint immediately if he finds no grounds to continue with the inquiry, otherwise he files the Information, if he finds cause to hold the respondent for trial; (c)(t)he finding/recommendation of the investigating prosecutor is subject to review only by the Provincial (sic) Prosecutor and the action of the latter, by the Secretary of Justice; (d)(w)hen the Court remanded the case to the Prosecution Office for the required preliminary investigation; the Court divested itself of its control and jurisdiction over the case;(and) (e) (the f)iling of information is within the discretionary authority of the fiscal.

On July 6, 1990, an Order[13]was issued by the Honorable Court denying both motions for reconsideration and reiterated its previous order to Prosecutor Novelita Llaguno to comply with the order of the court dated June 18, 1990, granting her 15 days to conduct the preliminary investigation from receipt of the copy of (the) Order.

On July 13, 1990, the Provincial Prosecutor filed a motion[14]to set aside the orders issued by respondent judge stating (1) that she has no authority to designate a particular prosecutor to handle the case (Abugotal vs. Tiro, 66 SCRA 196); (2) that the court will be acting without or with grave abuse of discretion should it insist on Prosecutor Llaguno to conduct the preliminary investigation; and (3) that the record of said case be forwarded to the Provincial Prosecutions Office for it to conduct the preliminary investigation.A Supplemental Motion[15]to withdraw the case so that the same may not remain pending with the court while the case is under preliminary investigation was also filed on July24, 1990 x x x.

On August 28, 1990, the Honorable Court denied both motions on the grounds that: (a)(t)he case of Abugotal vs. Tiro (66 SCRA 196) which prohibits the courts from appointing a particular fiscal to conduct the required preliminary investigation, is not in point as the said case refers to reinvestigation while the instant case refers to preliminary investigation; and (b)(t)he Honorable Court is apprehensive that if the Motion to Amend Orders are granted, there is nothing that will prevent the Provincial Prosecutor from implementing the orders issued by Prosecutor Salvador Cajot and the latter will just act in conformity with his previous action.[16]

On September 4, 1990, the Provincial Prosecutor filed a Motion for Reconsideration[17]dated September 3, 1990.

On September 6, 1990, the Honorable Court denied the Motion for Reconsideration for lack of merit.[18]

On April 16, 1991, Petitioner People of the Philippines, represented by the Solicitor General, filed the present petition seeking the annulment of the assailed orders of Respondent Judge Navarro.

On May 27, 1991, this Court in a minute resolution dismissed the petition for having been filed out of time and for its failure to state material dates as required by paragraph4 of Circular 1-88.[19]However, on May 17, 1993,[20]this Court reconsidered its resolution of May 27, 1991, and reinstated the petition forcertiorari.

The Issue

The sole issue raised in petitioners memorandum is:[21]

Whether or not respondent trial court committed grave abuse of discretion when it issued various orders appointing and designating a particular prosecutor to conduct the preliminary investigation.

Petitioner argues that Respondent Judge Navarro cannot name a particular prosecutor to conduct the preliminary investigation of the case, because such designation is contrary to extant jurisprudence.[22]On the other hand, Respondent Judge Navarro, in her memorandum, maintains that existing jurisprudence applies only to reinvestigation and not to cases where there was no preliminary investigation at all.She reasons that:[23]

x x x in assigning Asst. Prosecutor Novelita Llaguno, a fiscal appearing before this Court, to conduct the required preliminary investigation, it is to insure the compliance of the order --to conduct a real preliminary investigation and to prevent the case (from) being assigned to those who have participated in the erroneous procedure leading to the termination of this case before the Prosecutors Office.

The Courts Ruling

We find for petitioner.

It must be stressed that preliminary investigation is an executive, not a judicial, function.[24]As the officer authorized to direct and control the prosecution of all criminal actions,[25]a prosecutor is primarily responsible for ascertaining whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof.An RTC judge, on the other hand, has no authority to conduct a preliminary investigation.Thus, it has been held:

It is the fiscal who is given by law direction and control of all criminal actions. It is he who initiates all prosecutions in the name of the People of the Philippines, by information or complaint, against all persons who appear to be responsible for the offense involved.It is he (or other public prosecutor), therefore, who is primarily responsible for ascertaining through a preliminary inquiry or proceeding whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof.That function, to repeat, is not judicial but executive.When a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties.The assignment of that function to judges of inferior courts and to a very limited extent to courts of first instance was dictated by necessity and practical considerations, and the consequent policy, as we said in Salta, was that whenever there were enough fiscals or prosecutors to conduct preliminary investigations, courts were to leave that job which is essentially executive to them.It follows that the conclusions derived by a judge from his own investigation cannot be superior to and conclusively binding on the fiscal or public prosecutor, in whom that function is principally and more logically lodged.[26]

In setting aside the order of Prosecutor Cajot which granted the withdrawal of the complaint, and subsequently ordering Prosecutor Llaguno to conduct the required preliminary investigation, respondent judge clearly encroached on an executive function.That an RTC Judge has no authority to conduct a preliminary investigation necessarily means that he cannot directly order an assistant prosecutor, particularly over the objections of the latters superiors, to conduct a preliminary investigation.To allow him to do so is to authorize him to meddle in the executive and administrative functions of the provincial or city prosecutor.There is a hierarchy of officials in the prosecutory arm of the executive branch headed by the Secretary of Justice and his team of prosecutors.Mere suspicion or belief that the said officials will not adequately perform their official duties is no reason for the judges interference in or disregard of such hierarchy.

Abugotal vs. Tiro[27]ruled squarely on the issue of whether a trial court could choose a particular prosecutor who would conduct the preliminary investigation.In that case, the trial court, acting upon an urgent motion by private respondents therein, specifically ordered the First Assistant City Fiscal of Cagayan de Oro City to conduct a reinvestigation.This Court set aside that order because:[28]

Under Presidential Decree No. 77, the authority to conduct the preliminary investigation of the murder charge filed against private respondents is vested in the petitioner or his assistants.As chief of the office, petitioner has the right to designate as in fact he did the assistant fiscal who conducted the investigation.While it is true that an assistant fiscal or state prosecutor may file an information only in a case in which he himself conducted the preliminary investigation, he may furthermore do so only with the prior authority or approval of the city of provincial fiscal or chief state prosecutor.These provisions of law show in bold relief the degree of control over his assistants that petitioner exercises as chief of the office.

x x xx x xx x x

x x x.Where, however, the interest of justice so requires and the court orders a reinvestigation of a criminal case pending before it, the court cannot at the same time choose the fiscal who will conduct the reinvestigation.This is a prerogative vested in the city fiscal as head of office, and certainly beyond the powers of the court to do.(Citations omitted).

While the foregoing was decided pursuant to the provisions of PD No. 77,we hold the same to be still determinative of the instant case.Preliminary investigation is still an executive function which the law vests on the prosecutors, and not on the judiciary.

In the recent case ofRoberts, Jr. vs. Court of Appeals,[29]we have clearly said that although the determination of probable cause for the issuance of a warrant of arrest pertains exclusively to the judiciary,the preliminary investigation proper for resolving the question of whether the offender should be held for trial is a function of the prosecutors.Thus, the Court held that:[30]

xxxThe preliminary investigation proper -- whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial -- is the function of the Prosecutor.

. . .

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest.The first kind of preliminary investigation is executive in nature.It is a part of the prosecutions job.The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. . .

It is true that after a case has already been filed in court and the court thereby acquires jurisdiction over it, fiscals as a rule are divested of the power to dismiss a criminal action without the consent of the court.In the case at bench, however, the RTC had not yet acquired jurisdiction over the complaint filed directly before it by Sgt. Sanchez who was not a prosecutor.Neither was he authorized by the Provincial Prosecutor to file such case directly with the respondent court.

We are not persuaded by respondent judges contention thatAbugotalapplies only to reinvestigations, and not to preliminary investigations.This distinction is insubstantial and even tenuous.Both the preliminary investigation and reinvestigation are conducted in the same manner and for the same objective, that is, to determine whether there exists sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.[31]If the trial court cannot designate the prosecutor who will conduct a reinvestigation, there is more cogent reason why it should not be allowed to do so in original preliminary investigations, particularly where -- as in this case -- the said trial court has not even validly acquired jurisdiction over the case because of the lack of authority of the police officer who filed the case.WHEREFORE, the petition is herebyGRANTED. The assailed Orders of Respondent Judge Gloriosa S. Navarro areSET ASIDEandANNULLED.No costs.

G.R. Nos. 71208-09 August 30, 1985

SATURNINA GALMAN AND REYNALDO GALMAN,petitioners,vs.PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN),petitioner,vs.THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO,respondents.

CUEVAS, JR.,J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life.

To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy,1P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board.2Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas,3Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido.4

UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN5filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice.

Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board.6Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases"7contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the same ground.8Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board.9Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution.10

On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences.11On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial.12

All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion.

On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886.13

Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of certiorari14praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for certiorari15on the same ground. Having arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof.16The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against self- incrimination.17Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws.

The Agrava Board,18came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation.19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides

SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied)

The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings."20Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so.21The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law.21-aBoth these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them.

Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads:

... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ...22(Emphasis supplied)

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence23on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine.24Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person.25

It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent.

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.26

Similarly, in the case ofLouis J. Lefkowitz v. Russel27Turley" citingGarrity vs. New Jersey"where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self- incrimination.

To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board.The Cabal vs. Kapunan28doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is notPeople vs. Cabalnor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.29If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as follows:

That no person shall be ... compelled in a criminal case to be a witness against himself.30

As now worded, Section 20 of Article IV reads:

No person shall be compelled to be a witness against himself.

The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case

No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness.31Quoting the highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process

... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness.It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33).It exacts fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487).It is not a narrow or '"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230)Decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties.

Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates."32Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:

SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied)

it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against self-incrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads:

No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions,33whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used.34To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law.35Apparent conflict between two clauses should be harmonized.36

But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in direct contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered.37Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case ofPeople vs. Manalang38and we quote:

I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being. (Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 72670 September 12, 1986

SATURNINA GALMAN, REYNALDO GALMAN and et alpetitioners,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.

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 ."1This 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."2The 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 Board3to 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 media4so 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,5he finally constituted the Board6on 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 theponentethereof, 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, gr