FIRST DIVISION

[ G.R. No. 191567, March 20, 2013 ]

MARIE CALLO-CLARIDAD, PETITIONER, VS. PHILIP RONALD P.
ESTEBAN AND TEODORA ALYN ESTEBAN, RESPONDENTS.

DECISION

BERSAMIN, J.:

The determination of probable cause to file a criminal complaint or information in court

is exclusively within the competence of the Executive Department, through the Secretary
of Justice. The courts cannot interfere in such determination, except upon a clear showing
that the Secretary of Justice committed grave abuse of discretion amounting to lack or
excess of jurisdiction.

The Case

Under review is the decision promulgated on November 20, 2009,[1] whereby the Court of
Appeals (CA) upheld the resolution dated April 16, 2009 issued by the Secretary of
Justice dismissing for lack of probable cause the complaint for murder filed against the
respondents.[2]

Antecedents

The petitioner is the mother of the late Cheasare Armani “Chase” Callo Claridad, whose
lifeless but bloodied body was discovered in the evening of February 27, 2007 between
vehicles parked at the carport of a residential house located at No.10 Cedar Place,
Ferndale Homes, Quezon City. Allegedly, Chase had been last seen alive with respondent
Philip Ronald P. Esteban (Philip) less than an hour before the discovery of his lifeless
body.

Based on the petition, the following are the background facts.

Around 5:30 p.m. of  February 27, 2007, Chase returned home from visiting his
girlfriend, Ramonna Liza “Monnel” Hernandez.  Around 7:00 p.m., Chase’s sister Ariane
was sitting at the porch of their house when she noticed a white Honda Civic car parked
along the street.  Recognizing the driver to be Philip, Ariane waved her hand at him.
Philip appeared nonchalant and did not acknowledge her gesture.  Ariane decided to stay
behind and leave with their house helpers, Marivic Guray and Michelle Corpus, only
after Chase had left on board the white Honda Civic car.

In the meanwhile, Chase exchanged text messages with his girlfriend Monnel starting at
7:09 p.m. and culminating at 7:31 p.m. Among the messages was: Ppnta n kunin
gulong…yam iniisip k prn n d tyo magksma. sbrang lungkot k ngun (On the way to get
the tires… I still think about us not being together I’m very sad right now)

Security Guard (SG) Rodolph Delos Reyes and SG Henry Solis, who were stationed at
the main gate of Ferndale Homes, logged the arrival at 7:26 p.m. on February 27, 2007 of
Philip on board a white Honda Civic bearing plate CRD 999 with a male companion in
the passenger seat.  It was determined later on that the white Honda Civic bearing plate
CRD 999 was owned by one Richard Joshua Ulit, who had entrusted the car to Philip
who had claimed to have found a buyer of the car.  Ulit, Pamela Ann Que, and car shop
owner Edbert Ylo later attested that Philip and Chase were friends, and that they were
unaware of any rift between the two prior to the incident.

Marivic Rodriguez, a house helper of Shellane Yukoko, the resident of No. 9 Cedar
Place, Ferndale Homes, was with her co-employee nanny Jennylyn Buri and the latter’s
ward, Joei Yukoko, when they heard somebody crying coming from the crime
scene:  Help!  Help! This was at about 7:30 p.m.  Even so, neither of them bothered to
check who had been crying for help.  It was noted, however, that No. 10 Cedar Place,
which was owned by one Mrs. Howard, was uninhabited at the time.  Based on the initial
investigation report of the Megaforce Security and Allied Services, Inc.,[3] the Estebans
were illegally parking their cars at Mrs. Howard’s carport.  The initial investigation
report stated that the SGs would regularly remind the Estebans to use their own parking
garage, which reminders had resulted in heated discussions and altercations.  The SGs
kept records of all the illegal parking incidents, and maintained that only the Estebans
used the carport of No. 10 Cedar Place.

Around 7:45 p.m., respondent Teodora Alyn Esteban (Teodora) arrived at Ferndale
Homes on board a vehicle bearing plate XPN 733, as recorded in the subdivision SG’s
logbook.  At that time, three cars were parked at the carport of No. 10 Cedar place, to
wit:  a Honda CRV with plate ZAE 135 parked parallel to the Honda Civic with plate
CRD 999, and another Honda Civic with plate JTG 333, the car frequently used by
Philip, then parked diagonally behind the two cars.  Some witnesses alleged that prior to
the discovery of the Chase’s body, they had noticed a male and female inside the car
bearing plate JTG 333 engaged in a discussion.

At around 7:50 p.m., SG Abelardo Sarmiento Jr., while patrolling around the village,
noticed that the side of the Honda Civic with plate JTG 333 had red streaks, which
prompted him to move towards the parked cars.  He inspected the then empty vehicle and
noticed that its radio was still turned on.  He checked the cars and discovered that the rear
and side of the Honda Civic with plate CRD 999 were smeared with blood.  He saw on
the passenger seat a cellular phone covered with blood. It was then that he found the
bloodied and lifeless body of Chase lying between the parallel cars.  The body was naked
from the waist up, with a crumpled bloodied shirt on the chest, and with only the socks
on. SG Sarmiento called for back-up. SG Rene Fabe immediately barricaded the crime
scene.

Around 7:55 p.m., SG Solis received a phone call from an unidentified person who
reported that a “kid” had met an accident at Cedar Place.  SG Solis later identified and
confirmed the caller to be “Mr. Esteban Larry” when the latter entered the village gate
and inquired whether the “kid” who had met an accident had been attended to. 
Moreover, when SG Fabe and SG Sarmiento were securing the scene of the crime, they
overheard from the radio that somebody had reported about a “kid” who had been
involved in an accident at Cedar Place.  SG Fabe thereafter searched the village premises
but did not find any such accident.  When SG Fabe got back, there were already several
onlookers at the crime scene.

The Scene-of-the-Crime Operations (SOCO) team arrived. Its members prepared a sketch
and took photographs of the crime scene. They recovered and processed the cadaver of
Chase, a bloodstained t-shirt, blood smears, green nylon cord, fingerprints, wristwatch,
and a bloodied Nokia N90 mobile phone.

According to the National Bureau of Investigation (NBI) Medico-Legal Report No N-07-

163 signed by Dr. Valentin Bernales, Acting Medico-Legal Division Chief, and Dr. Cesar
B. Bisquera, Medico-Legal Officer, the victim sustained two stab wounds, to wit: one on
the left side of the lower chest wall with a depth of 9 cm., which fractured the 4th rib and
pierced the heart, and the other on the middle third of the forearm. The findings
corroborated the findings contained in Medico-Legal Report No. 131-07 of Police Chief
Insp. Filemon C. Porciuncula Jr.

Resolution of the
Office of the City Prosecutor

The Office of the City Prosecutor (OCP) of Quezon City dismissed the complaint in its
resolution dated December 18, 2007.[4]

The OCP observed that there was lack of evidence, motive, and circumstantial evidence
sufficient to charge Philip with homicide, much less murder; that the circumstantial
evidence could not link Philip to the crime; that several possibilities would discount
Philip’s presence at the time of the crime, including the possibility that there were more
than one suspect in the fatal stabbing of Chase; that Philip was not shown to have any
motive to kill Chase; that their common friends attested that the two had no ill-feelings
towards each other; that no sufficient evidence existed to charge Teodora with the crime,
whether as principal, accomplice, or accessory; and that the allegation that Teodora could
have been the female person engaged in a discussion with a male person inside the car
with plate JTG 333 was unreliable being mere hearsay.

The petitioner moved for the reconsideration of the dismissal, but the OCP denied the
motion on December 15, 2008.[5]

Resolution by the Secretary of Justice

On petition for review,[6] the Secretary of Justice affirmed the dismissal of the complaint
on April 16, 2009.[7]

The Secretary of Justice stated that the confluence of lack of an eyewitness, lack of
motive, insufficient circumstantial evidence, and the doubt as to the proper identification
of Philip by the witnesses resulted in the lack of probable cause to charge Philip and
Teodora with the crime alleged.

The Secretary of Justice held that the only circumstantial evidence connecting Philip to
the crime was the allegation that at between 7:00 to 7:30 o’clock of the evening in
question, Chase had boarded the white Honda Civic car driven by Philip; that the
witnesses’ positive identification of Philip as the driver of the car was doubtful, however,
considering that Philip did not alight from the car, the windows of which were tinted; and
that the rest of the circumstances were pure suspicions, and did not indicate that Philip
had been with Chase at the time of the commission of the crime.

After her motion for reconsideration was denied by the Secretary of Justice on May 21,
2009,[8] the petitioner elevated the matter to the CA by petition for review under Rule
43, Rules of Court.

Ruling of the CA

In her petition for review in the CA, the petitioner assigned to the Secretary of Justice the
following errors, to wit:

I. THE HONORABLE SECRETARY OF JUSTICE MANIFESTLY ERRED

IN DENYING THE PETITION FOR REVIEW AND MOTION FOR
RECONSIDERATION THEREOF FILED BY PETITIONER
CONSIDERING THAT PROBABLE CAUSE EXISTS AGAINST
RESPONDENTS FOR THE CRIME OF MURDER UNDER ARTICLE
248 OF THE REVISED PENAL CODE.

II. THE HONORABLE SECRETARY OF JUSTICE ERRED IN NOT

FINDING THE NUMEROUS PIECES OF CIRCUMSTANTIAL
EVIDENCE PRESENTED AGAINST RESPONDENTS TO HOLD
 THEM LIABLE FOR THE CRIME OF MURDER AS EXTANT IN THE
RECORDS OF THE CASE.

III. THE HONORABLE SECRETARY OF JUSTICE ERRED IN NOT

FINDING THAT ALL THE ELEMENTS OF THE CRIME OF MURDER
ARE PRESENT IN THE INSTANT CASE.[9]

On November 20, 2009, the CA promulgated its assailed decision, [10] dismissing the
petition for review.

The petitioner filed a motion for reconsideration, but the CA denied the motion for its
lack of merit.

Hence, this appeal by petition for review on certiorari.

The petitioner prays that Philip and Teodora be charged with murder on the strength of
the several pieces of circumstantial evidence; that the qualifying aggravating
circumstances of evident premeditation and treachery be appreciated in the slaying of her
son, given the time, manner, and weapon used in the commission of the crime and the
location and degree of the wounds inflicted on the victim.

Issue

Whether the CA committed a reversible error in upholding the decision of the Secretary
of Justice finding that there was no probable cause to charge Philip and Teodora with
murder for the killing of Chase.

Ruling

We deny the petition for review, and sustain the decision of the CA.

We note, to start with, that the petitioner assailed the resolution of the Secretary of Justice
by filing in the CA a petition for review under Rule 43, Rules of Court. That was a grave
mistake that immediately called for the outright dismissal of the petition. The filing of a
petition for review under Rule 43 to review the Secretary of Justice’s resolution on the
determination of probable cause was an improper remedy.[11] Indeed, the CA had no
appellate jurisdiction vis-à-vis the Secretary of Justice.

A petition for review under Rule 43 is a mode of appeal to be taken only to review the
decisions, resolutions or awards by the quasi-judicial officers, agencies or bodies,
particularly those specified in Section 1 of Rule 43.[12] In the matter before us, however,
the Secretary of Justice was not an officer performing a quasi-judicial function. In
reviewing the findings of the OCP of Quezon City on the matter of probable cause, the
Secretary of Justice performed an essentially executive function to determine whether the
crime alleged against the respondents was committed, and whether there was probable
cause to believe that the respondents were guilty thereof.[13]

On the other hand, the courts could intervene in the Secretary of Justice’s determination
of probable cause only through a special civil action for certiorari. That happens when
the Secretary of Justice acts in a limited sense like a quasi-judicial officer of the executive
department exercising powers akin to those of a court of law.[14] But the requirement for
such intervention was still for the petitioner to demonstrate clearly that the Secretary of
Justice committed grave abuse of discretion amounting to lack or excess of jurisdiction.
Unless such a clear demonstration is made, the intervention is disallowed in deference to
the doctrine of separation of powers. As the Court has postulated in Metropolitan Bank &
Trust Co. (Metrobank) v. Tobias III: [15]

Under the doctrine of separation of powers, the courts have no right to directly decide
matters over which full discretionary authority has been delegated to the Executive
Branch of the Government, or to substitute their own judgments for that of the Executive
Branch, represented in this case by the Department of Justice. The settled policy is that
the courts will not interfere with the executive determination of probable cause for the
purpose of filing an information, in the absence of grave abuse of discretion. That abuse
of discretion must be so patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law,
such as where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility. x x x

Secondly, even an examination of the CA’s decision indicates that the CA correctly
concluded that the Secretary of Justice did not abuse his discretion in passing upon and
affirming the finding of probable cause by the OCP.

A preliminary investigation, according to Section 1, Rule 112 of the Rules of Court, is

“an inquiry or proceeding to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and  the respondent is probably
guilty thereof, and should be held for trial.”  The investigation is advisedly called
preliminary, because it is yet to be followed by the trial proper in a court of law. The
occasion is not for the full and exhaustive display of the parties’ evidence but for the
presentation only of such evidence as may engender a well-founded belief that an offense
has been committed and that the accused is probably guilty of the offense. [16] The role and
object of preliminary investigation were “to secure the innocent against hasty, malicious,
and oppressive prosecutions, and to protect him from open and public accusation of
crime, from the trouble, expenses and anxiety of a public trial, and also to protect the
State from useless and expensive prosecutions.”[17]
In Arula vs. Espino,[18] the Court rendered the three purposes of a preliminary
investigation, to wit:  (1) to inquire concerning the commission of a crime and the
connection of the accused with it, in order that he may be informed of the nature and
character of the crime charged against him, and, if there is probable cause for believing
him guilty, that the State may take the necessary steps to bring him to trial; (2) to
preserve the evidence and keep the witnesses within the control of the State; and (3) to
determine the amount of bail, if the offense is bailable. The officer conducting the
examination investigates or inquires into facts concerning the commission of a crime with
the end in view of determining whether an information may be prepared against the
accused.

The determination of the existence of probable cause lies within the discretion of the
public prosecutor after conducting a preliminary investigation upon the complaint of an
offended party.[19] Probable cause for purposes of filing a criminal information is defined
as such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof.  A finding of probable
cause needs only to rest on evidence showing that more likely than not a crime has been
committed, and that it was committed by the accused.  Probable cause, although it
requires less than evidence justifying a conviction, demands more than bare suspicion. [20]

A public prosecutor alone determines the sufficiency of evidence that establishes the
probable cause justifying the filing of a criminal information against the respondent
because the determination of existence of a probable cause is the function of the public
prosecutor.[21] Generally, the public prosecutor is afforded a wide latitude of discretion in
the conduct of a preliminary investigation. Consequently, it is a sound judicial policy to
refrain from interfering in the conduct of preliminary investigations, and to just leave to
the Department of Justice the ample latitude of discretion in the determination of what
constitutes sufficient evidence to establish probable cause for the prosecution of supposed
offenders.  Consistent with this policy, courts do not reverse the Secretary of Justice’s
findings and conclusions on the matter of probable cause except in clear cases of grave
abuse of discretion.[22]  By way of exception, however, judicial review is permitted where
the respondent in the preliminary investigation clearly establishes that the public
prosecutor committed grave abuse of discretion, that is, when the public prosecutor has
exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent and gross enough as to amount to an
evasion of a positive duty or virtual refusal to perform a duty enjoined by law.[23] 
Moreover, the trial court may ultimately resolve the existence or non-existence of
probable cause by examining the records of the preliminary investigation when necessary
for the orderly administration of justice.[24] Although policy considerations call for the
widest latitude of deference to the public prosecutor’s findings, the courts should never
shirk from exercising their power, when the circumstances warrant, to determine whether
the public prosecutor’s findings are supported by the facts, and by the law.[25]
Under the circumstances presented, we conclude to be correct the CA’s determination
that no prima facie evidence existed that sufficiently indicated the respondents’
involvement in the commission of the crime. It is clear that there was no eyewitness of
the actual killing of Chase; or that there was no evidence showing how Chase had been
killed, how many persons had killed him, and who had been the perpetrator or
perpetrators of his killing. There was also nothing that directly incriminated the
respondents in the commission of either homicide or murder.

Admittedly, the petitioner relies solely on circumstantial evidence, which she insists to be
enough to warrant the indictment of respondents for murder.

We disagree.

For circumstantial evidence to be sufficient to support a conviction, all the circumstances

must be consistent with one another and must constitute an unbroken chain leading to one
fair and reasonable conclusion that a crime has been committed and that the respondents
are probably guilty thereof.  The pieces of evidence must be consistent with the
hypothesis that the respondents were probably guilty of the crime and at the same time
inconsistent with the hypothesis that they were innocent, and with every rational
hypothesis except that of guilt.[26] Circumstantial evidence is sufficient, therefore, if: (a)
there is more than one circumstance, (b) the facts from which the inferences are derived
have been proven, and (c) the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.[27]

The records show that the circumstantial evidence linking Philip to the killing of Chase
derived from the bare recollections of Ariane (sister of Chase), and of Guray and Corpus
(respectively, the househelp and nanny in the household of a resident of the subdivision)
about seeing Chase board the white Honda Civic at around 7:00 p.m. of February 27,
2007, and about Philip being the driver of the Honda Civic. But there was nothing else
after that, because the circumstances revealed by the other witnesses could not even be
regarded as circumstantial evidence against Philip.  To be sure, some of the affidavits
were unsworn.[28] The statements subscribed and sworn to before the officers of the
Philippine National Police (PNP) having the authority to administer oaths upon matters
connected with the performance of their official duties undeniably lacked the requisite
certifications to the effect that such administering officers had personally examined the
affiants, and that such administering officers were satisfied that the affiants had
voluntarily executed and understood their affidavits.[29]

The lack of the requisite certifications from the affidavits of most of the other witnesses
was in violation of Section 3, Rule 112 of the Rules of Court, which pertinently provides
thusly:
Section 3. Procedure. — The preliminary investigation shall be conducted in the
following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting documents
to establish probable cause. They shall be in such number of copies as there are
respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary public, each of who must
certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.

xxxx

The CA explained that the requirement for the certifications under the aforecited rule was
designed to avoid self-serving and unreliable evidence from being considered for
purposes of the preliminary investigation, the present rules for which do not require a
confrontation between the parties and their witnesses; hence, the certifications were
mandatory, to wit:

In Oporto, Jr. vs. Monserate, it was held that the requirement set forth under Section 3,
Rule 112 of the Revised Rules of Criminal Procedure is mandatory. This is so because
the rules on preliminary investigation does not require a confrontation between the
parties.  Preliminary investigation is ordinarily conducted through submission of
affidavits and supporting documents, through submission of affidavits and
supporting documents, through the exchange of pleadings.  Thus, it can be inferred
that the rationale for requiring the affidavits of witnesses to be sworn to before a
competent officer so as to ensure that the affidavits supporting the factual
allegations in the Complaint have been sworn before a competent officer and that
the affiant has signed the same in the former’s presence declaring on oath the truth
of the statement made considering that this becomes part of the bases in finding
probable guilt against the respondent. Well-settled is the rule that persons, such as
an employee, whose unsworn declarations in behalf of a party, or the employee’s
employer in this case, are not admissible in favor of the latter. Further, it has been
held that unsworn statements or declarations are self-serving and self-serving
declarations are not admissible in evidence as proof of the facts asserted, whether
they arose by implication from acts and conduct or were made orally or reduced in
writing. The vital objection to the admission to this kind of evidence is its hearsay
character.

In the case at bar, a perusal of the statements/affidavits accompanying the complaint

shows that out of the total of 16 statements/affidavits corresponding to the respective
witnesses, only nine (9) thereof were sworn to before a competent officer.  These were
the affidavits of the following:  (1) SG Sarmiento; (2) SG Solis; (3) SG Fabe; (4) SG
Marivic Rodriguez; (5) Jennylyn Buri; (6) Richard Joshua Sulit; (7) Marites Navarro; (8)
Pamela-Ann Que; and (9) Edbert Ylo, which were sworn to or subscribed before a
competent officer.

Thus, it is imperative that the circumstantial evidence that the victim was last seen in the
company of respondent Philip must be established by competent evidence required by the
rules in preliminary investigation.  Here, it was allegedly Chase’s sister, Ariane, and their
two household helpers, Marivic Guray and Michelle Corpus, who saw respondent Philip
pick up Chase at around 7:00 o’clock in the evening of February 27, 2007.  Yet, such fact
from which the inference is derived was not duly proven.  The statements of Marivic and
Michelle both executed on February 28, 2007 were not sworn to before the proper
officer.  Neither was the affidavit dated July 3, 2009 of Ariane Claridad duly notarized
nor is there any explanation why the same was belatedly executed.

It cannot thus be used to prove the circumstance that it was respondent Philip who drove
the white car parked in front of their house at around 7:00 o’clock in the evening of
February 27, 2007 and that the factual allegation that the car used bore the Plate no.
CRD-999.  Further, since their affidavits were not in the nature of a public document, it is
incumbent upon the complainant to prove its due execution and authenticity before the
same is admitted in evidence.  It is a well-settled rule that private documents must be
proved as to their due execution and authenticity before they may be received in
evidence.

Likewise, the circumstance that the victim sent a text message to his girlfriend Monet that
he was on his way to get the tires at around 7:09 o’clock in the evening of February 27,
2007 is likewise inadmissible in evidence because Monet’s affidavit was not sworn to
before a competent officer.  There was also no evidence of the alleged text message
pursuant to the law on admissibility of electronic evidence.  Besides, it cannot be inferred
therefrom who the victim was with at that time and where he was going to get the tires.

Neither can the handwritten unsworn statement dated February 28, 2007 of SG Rodolph
delos Reyes and handwritten sworn statement dated March 8, 2008 of SG Henry Solis be
of any help in claiming that the victim was in the company of respondent Philip when the
latter entered the village at around 7:26 o’clock in the evening of February 27, 2007. 
Suffice it to state that their statements only identified respondent Philip driving the white
Honda Civic bearing Plate No. CRD-999.  However, both were unsure if they saw
respondent Philip with a passenger because it was already dark and the car was tinted. [30]

Also, the CA cited in its decision the further consequences of not complying with the
aforequoted rule, to wit:
It also follows that the succeeding pieces of circumstantial evidence relied upon by
complainant are not admissible for either being incompetent or hearsay evidence, to wit:

(a) that at around 7:45 p.m., respondent Teodora Alyn Esteban, on board a vehicle
bearing plate no. XPN-733 entered Ferndale Homes is inadmissible because it is not
supported by any sworn affidavit of a witness

(b)  that at around the same time, two unidentified persons, a male and female were heard
talking inside Honda Civic bearing plate no. JTG-333 allegedly belonging to respondent
Philip, which was one of the vehicles parked at the carport of #10 Cedar Place, inside
Ferndale Homes is inadmissible because it is not supported by any sworn affidavit of a
witness;

(c) that the Esteban family was temporarily using the carport of #10 Cedar Place as a
carpark for their vehicles at that time is inadmissible because it is not supported by any
sworn affidavit of a witness;

(d) that when the guards went to the house of the Esteban family, the same was unusually
dark and dim is inadmissible because it is not supported by any sworn affidavit of a
witness;

(e) that while the crime scene was being processed, Mr. Esteban sought assistance from
the police and requested that they escort his son, respondent Philip Esteban, to St. Luke’s
Medical Center, as the latter also allegedly suffered injuries is inadmissible because it is
not supported by any sworn affidavit of a witness;

(f) that during the investigation, Philip, Mrs. Teodora Alyn Esteban and their family
refused to talk and cooperate with the authorities and that they neither disclosed the
extent of Philip’s alleged injuries nor disclosed as to how or why he sustained them is
inadmissible because it is not supported by any sworn affidavit of a witness; and

(g) Mrs. Edith Flores, speaking for respondents’ family, reportedly communicated with
the family of the deceased on numerous occasions and offered to pay for the funeral
expenses is inadmissible because it is not supported by any sworn affidavit of a witness.

This now leaves this Court with the remaining pieces of circumstantial evidence
supported by the sworn statement dated March 6, 2007 of Marivic Rodriguez,
handwritten sworn statement dated March 8, 2007 of SG Abelardo Sarmiento, Jr. and
handwritten sworn statement dated March 8, 2007 of SG Rene Fabe as follows:

(a)  at around 7:30 p.m., Marivic Guray and Jennylyn Buri heard a commotion (loud cries
saying “Help! Help!) at No. 10, Cedar Place inside Ferndale Homes;
(b) at around 7:50 p.m., the body of the deceased was discovered lying in a pool of blood
in the carport of #10 Cedar Place;

(c) there was blood inside and outside the white Honda Civic bearing plate no. CRD-999;

(d) that at around 7:55 p.m., respondent Philip Esteban’s father, Lauro Esteban, who was
then outside the village, called the security guard at the entrance gate of the village to
report the incident through his mobile phone;

(e) that at around 9:09 p.m., Mr. Esteban entered the village and admitted that he was the
one who called for assistance regarding an incident that transpired at Cedar Place; and

(f) as per Autopsy Report, the cause of Chase’s death was a stab wound in the chest and
that the said wound was 9 centimeters deep, or around 3.6 inches and cut the descending
aorta of his heart.

The above pieces of circumstantial evidence, though duly supported by sworn statements
of witnesses, when taken as a whole, do not, however, lead to a finding of probable cause
that respondents committed the crime charged.

The factual allegations of the complaint merely show that at around 7:30 o’clock in the
evening of February 27, 2007, Marivic Rodriguez heard a male voice, coming from the
front of their employer’s house, shouting “Help! Help!”; that at around 7:50 p.m., the
body of the deceased was discovered lying in a pool of blood in the carport of #10 Cedar
Place; that there was blood inside and outside the white Honda Civic bearing plate no.
CRD-999; and, that as per Autopsy Report, the cause of Chase’s death was a stab wound
in the chest and that the said wound was 9 centimeters deep, or around 3.6 inches and cut
the descending aorta of his heart.  However, all of these do not prove the presence of
respondents at the scene of the crime nor their participation therein.

We likewise agree with the DOJ Secretary that there was no motive on the part of the
respondents to kill the victim.  This was supported by the sworn statement dated March 1,
2007 of Richard Joshua Ulit; the sworn statement dated March 10, 2007 of Pamela-Ann
Que; and, the sworn statement dated March 10, 2007 of Egbert Ylo, who all knew the
victim and respondent Philip and claimed that the two were good friends and that they
were not aware of any misunderstanding that occurred between the concerned parties. 
Jurisprudence is replete that motive becomes of vital importance when there is doubt as
to the identity of the perpetrator.

In Preferred Home Specialties, Inc., et al. vs. Court of Appeals, et al., the Supreme Court
held that while probable cause should be determined in a summary manner, there is a
need to examine the evidence with care to prevent material damage to a potential
accused’s constitutional right to liberty, the guarantees of freedom and fair play, and to
protect the State from the burden of unnecessary expenses in prosecuting alleged offenses
and holding trials arising from false, fraudulent or groundless charges.[31]

It is clear from the foregoing disquisitions of the CA that the Secretary of Justice
reasonably reached the conclusion that the dismissal by the OCP of Quezon City of the
complaint for murder had been based on the lack of competent evidence to support a
finding of probable cause against the respondents. Accordingly, such finding of probable
cause by the Executive Department, through the Secretary of Justice, could not be undone
by the CA, in the absence of a clear showing that the Secretary of Justice had gravely
abused his discretion. Grave abuse of discretion means that the abuse of discretion must
be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law or to act at all in contemplation of law, such as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility.
[32]
 That showing was not made herein.

WHEREFORE, the Court DENIES the petition for review on certiorari, and AFFIRMS

the decision of the Court of Appeals promulgated on November 20, 2009.

The petitioner shall pay the costs of suit.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 202612, January 17, 2018 ]
TEODORO C. TORTONA, RODRIGO C. TORTONA, PEDRO C. TORTONA,
ERNESTO C. TORTONA, AND PATRICIO C. TORTONA, PETITIONERS, V.
JULIAN C. GREGORIO, FLORENTINO GREGORIO, JR., ISAGANI C.
GREGORIO, CELEDONIA G. IGNACIO, TEODOCIA G. CHAN, LEONILA
G. CAAMPUED, CONCORDIA G. MIJARES, ROMEO C. GREGORIO,
EDNA S. TAN, NELIA S. REYES, CECILIA S. FRIEDMAN, LAMBERTO
SUANTE, JULIUS SUANTE, CORAZON YASAY-GREGORIO, DONALDO Y.
GREGORIO, ELMER Y. GREGORIO, AND ROY JOHN Y. GREGORIO,
RESPONDENTS.

DECISION

LEONEN, J.:
 Documents acknowledged before a notary public are presumed to have been
duly executed. This presumption may be contradicted by clear and convincing evidence.
A notarized Deed of Absolute Sale where the thumbmark of a party is shown to be a
forgery is void.

This resolves a Petition for Review on Certiorari [1] under Rule 45 of the 1997 Rules of
Civil Procedure praying that the assailed Court of Appeals July 9, 2012 Decision [2] in
CA-G.R. CV No. 91767 be reversed and set aside. This assailed Decision reversed and
set aside the May 31, 2005 Decision [3] of the Regional Trial Court of Bacoor, Cavite,
which ruled in favor of then plaintiffs, now petitioners, in their action for recovery of real
property with damages against then defendants, now respondents.

This case is an offshoot of a Deed of Absolute Sale allegedly entered into by sisters
Rufina Casimiro (Rufina), the purported seller, and Rafaela Casimiro (Rafaela), the
purported buyer. Petitioners are the heirs of Rufina, while respondents are the heirs of
Rafaela.[4]

During their lifetime, Rufina and Rafaela co-owned with their other siblings two (2)
parcels of land.[5] They shared in equal, undivided 1/10 shares of a parcel located in
Longos, Bacoor, Cavite, covered by Original Certificate of Title (OCT) No. O-923. They
also shared in equal, undivided 1/5 shares of a second parcel in Talaba, Bacoor, Cavite,
covered by Transfer Certificate of Title (TCT) No. T-10058.[6]

When Rufina was still alive, she regularly collected her respective 1/10 and 1/5 shares in
the income of the two (2) properties. After her death, petitioners continued to collect and
receive their mother's share.[7]

Sometime in 1997, petitioners filed a complaint for recovery of real property with
damages. They alleged that their cousin Emilio Casimiro (Emilio) offered them
a balato[8] of P50,000.00 for the sale of the first parcel to the Department of Public Works
and Highways. Surprised, they asked why they were not instead given their 1/10 share in
the proceeds of the sale. To this, Emilio allegedly replied that according to respondents,
[9]
 the two (2) properties had already been sold by Rufina to Rafaela during their lifetime.
[10]

Petitioners proceeded to the Office of the Registry of Deeds to verify the supposed sale.
They learned that OCT No. O-923, covering the first parcel, had already been cancelled
on account of a Deed of Absolute Sale allegedly executed by Rufina and Rafaela on
February 14, 1974. It appeared that Rufina also sold her 1/5 share over the second parcel
covered by TCT No. T-10058. It also became apparent that some time after the sales of
the two (2) parcels, respondents executed a Declaration of Heirship and Extrajudicial
Partition. Consequently, Rufina's 1/10 and 1/5 shares in the first and second parcels were
added to the shares of the respondents, as Rafaela's heirs, thereby increasing their shares
to 2/10 and 2/5, respectively.[11]

Petitioners underscored that their mother was illiterate, not even knowing how to write
her own name. They alleged that she only affixed her thumbmark on documents, and
whenever she did so, she was always assisted by at least one (1) of her children. Thus,
they asserted that if the sales to Rafaela were genuine, they should have known about
them.[12]

In support of their allegations, they presented during trial some documents, [13] collectively
identified as the standard documents, supposedly bearing the authentic thumbmarks of
their mother. These standard documents also showed that at least one (1) of them assisted
her in executing each document.[14]

Petitioners likewise presented as witness National Bureau of Investigation fingerprint

examiner Eriberto B. Gomez, Jr. (Gomez), who conducted an examination to determine
the genuineness of the questioned thumbmarks in the Deed of Absolute Sale. [15] He noted
that he compared the questioned thumbmarks with the genuine thumbmarks of Rufina in
the standard documents. In his Technical Investigation/Identification Report FP Case No.
2000-182-A dated July 13, 2000 (First Report),[16] Gomez noted that "the purported
thumbmarks of Rufina Casimiro in the alleged Deed of Absolute Sale ... [were] not
identical with her standard thumbmarks in [the standard documents]" and concluded that
"the thumbmarks appearing in the ... Deed of Absolute Sale ... were not impressed by
Rufina Casimiro."[17]

In another report dated May 2, 2001 (Second Report), Gomez observed that the
thumbmarks on the standard documents appeared to be "faint, blurred and lacking the
necessary ridge characteristics to warrant positive identification."[18] During a subsequent
hearing, however, he clarified that "while the standard thumbmarks lack the 'necessary
ridge characteristics to warrant positive identification,['] 'all the standard are all in the
same finger print pattern' and 'they are also in agreement of the flow of ridges of all the
standard."'[19]

In its May 31, 2005 Decision,[20] the Regional Trial Court concluded that the Deed of
Absolute Sale was a forgery and ruled in favor of the petitioners. It found as credible the
First Report, which positively showed that the questioned thumbmarks in the Deed of
Absolute Sale were not Rufina's:

This Court has examined the said thumbmarks and is convinced and satisfied that they
are very different from her standard thurnbmarks in the documents Exhibits "F", "G", and
"H". This difference is further enhanced in the enlarged photographs of these
thumbmarks (Exhibit "J"). It is clear by the naked eyes that Rufina's thurnbmarks in the
questioned Deed of Absolute Sale (Exhibit "D") are really the "circle type" while those of
the standard thurnbmarks in Exhibits "F", "G" and "H" are the loop type as the NBI
expert technically described them. As the Supreme Court ruled in People vs. Abatayo, 87
Phil. 794, 798, "Thumbmarks never lie". "A comparison of both the differences and
similarities in the questioned thurnbmarks (signatures) should have been made to satisfy
the demands of evidence" (Licarte vs. CA, G.R. No. 128899; June 8, 1995). [21]

The dispositive portion of its Decision read:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring the thumbmarks of Rufina Casimiro in the Deed of Absolute Sale dated
February 14, 1974, Doc. No. 73, Page 16, Book 1, Series of 1974 of the notarial registry
of Atty. Arcadio Espiritu of Bacoor, Cavite (Exhibit "D") as forged and hence, null and
void and inexistent.

2. Declaring the Deed of Declaration of Heirship and Extrajudicial Partition dated August
15, 1996 (Exhibit "E") null and void insofar as the adjudication of the one-tenth (1/10)
share of Rufina Casimiro over the lot situated in Longos, Bacoor, Cavite, covered by
OCT No. O-923; and the one-fifths (1/5) share of Rufina Casimiro in the lot situated in
Talaba, Bacoor, Cavite, covered by TCT No. T-10058 both of the Registry of Deeds for
the Province of Cavite (Exhibits "A" and "B"), both in favor of the Heirs of Rafaela
Casimiro.

3. The Register of Deeds of the Province of Cavite is hereby ordered to cancel TCT No.
T-741726, and to revert to the cancelled OCT No. O-923 and to cancel Entry No. 8449-
75 appearing on TCT No. T-10058, which is the annotation of the questioned Deed of
Absolute Sale (Exhibit "D") that has been declared herein as null and void and inexistent.

The claim for damages is hereby DENIED for lack of merit.

SO ORDERED.[22]

The Court of Appeals reversed and set aside the ruling of the Regional Trial Court. [23] It
found that the Deed of Absolute Sale was a notarized document and had in its favor the
presumption of regularity. It also emphasized Gomez's second examination, which
appeared to indicate that the thumbmarks in the standard documents prevent "positive
identification."[24] Thus, according to the Court of Appeals, the Regional Trial Court's
conclusions were suspect. It held that, ultimately, petitioners failed to prove "by clear and
convincing evidence" that the thumbmarks found on the Deed of Absolute Sale were
forged.[25]

The Heirs of Rufina then filed the present Petition.

For resolution is the sole issue of whether or not the Deed of Absolute Sale allegedly
executed by Rufina Casimiro, as seller, and Rafaela Casimiro, as buyer, is void, as Rufina
Casimiro never consented to it and with her apparent thumbmarks on it being fake.

The Court of Appeals gravely erred in reversing the ruling of the Regional Trial Court.
The Petition must be granted and the Regional Trial Court May 31, 2005 Decision must
be reinstated.

The matter of the authenticity of Rufina Casimiro's thumbmarks is a factual issue resting
on the evidence presented during trial. Factual issues are normally improper in Rule 45
petitions as, under Rule 45 of the 1997 Rules of Civil Procedure, [26] only questions of law
may be raised in a petition for review on certiorari. However, the rule admits of
exceptions. In Pascual v. Burgos:[27]

The Rules of Court require that only questions of law should be raised in petitions filed
under Rule 45. This court is not a trier of facts. It will not entertain questions of fact as
the factual findings of the appellate courts are "final, binding[,] or conclusive on the
parties and upon this [c]ourt" when supported by substantial evidence. Factual findings of
the appellate courts will not be reviewed nor disturbed on appeal to this court.

However, these rules do admit exceptions. Over time, the exceptions to these rules have
expanded. At present, there are 10 recognized exceptions that were first listed in Medina
v. Mayor Asistio, Jr.:

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion; (4) When the judgment is based on a
misapprehension of facts; (5) When the findings of fact are conflicting; (6) When the
Court of Appeals, in making its findings, went beyond the issues of the case and the same
is contrary to the admissions of both appellant and appellee; (7) The findings of the Court
of Appeals are contrary to those of the trial court; (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based; (9) When the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents; and (10) The finding of fact of the Court of Appeals is
premised on the supposed absence of evidence and is contradicted by the evidence on
record.

These exceptions similarly apply in petitions for review filed before this court involving
civil, labor, tax, or criminal cases.[28] (Citations omitted)
Several exceptions exist in this case. Most evident is how the findings and conclusions of
the Court of Appeals conflict with those of the Regional Trial Court. More significant
than these conflicting findings, this Court finds the Court of Appeals' appreciation of
evidence to be grossly misguided. Contrary to the Court of Appeals' findings, a more
circumspect consideration of the evidence sustains the conclusion that Rufina's purported
thumbmarks were false and merely simulated to make it appear that she had consented to
the alleged sale to her sister, Rafaela.

II

Notarization enables a notary public to ascertain the voluntariness of the party's act and to
verify the genuineness of his or her signature. [29] Through notarization, the public and the
courts may rely on the face of the instrument, without need of further examining its
authenticity and due execution. It is an act that is imbued with public interest. In Nunga
v. Atty. Viray:[30]

[N]otarization is not an empty, meaningless, routinary act. It is invested with substantive

public interest, such that only those who are qualified or authorized may act as notaries
public. The protection of that interest necessarily requires that those not qualified or
authorized to act must be prevented from imposing upon the public, the courts, and the
administrative offices in general. It must be underscored that the notarization by a notary
public converts a private document into a public document making that document
admissible in evidence without further proof of the authenticity thereof. A notarial
document is by law entitled to full faith and credit upon its face. For this reason, notaries
public must observe with utmost care the basic requirements in the performance of their
duties.[31]

Notarized documents enjoy the presumption of regularity. They are accorded evidentiary
weight as regards their due execution:

Generally, a notarized document carries the evidentiary weight conferred upon it with
respect to its due execution, and documents acknowledged before a notary public have in
their favor the presumption of regularity.[32]

However, any such presumption is disputable. It can be refuted by clear and convincing
evidence to the contrary:

It is true that notarized documents are accorded evidentiary weight as regards their due
execution. Nevertheless, while notarized documents enjoy the presumption of regularity,
this presumption is disputable. They can be contradicted by evidence that is clear,
convincing, and more than merely preponderant.[33] (Citations omitted)
The contentious Deed of Absolute Sale in this case is a notarized document. [34] Thus, it
benefits from the presumption of regularity. The burden of proving that thumbmarks
affixed on it by an ostensible party is false and simulated lies on the party assailing its
execution.[35] It is then incumbent upon petitioners to prove by clear and convincing
evidence that the seller's thumbmarks, as appearing on the Deed of Absolute Sale, are
forged and are not their mother's.

Petitioners successfully discharged this burden.

With the aid of an expert witness, they contrasted Rufina's apparent thumbmarks on the
Deed of Absolute Sale with specimen thumbmarks on authentic documents. They
demonstrated disparities that lead to no other conclusion than that the thumbmarks on the
contentious Deed of Absolute Sale are forged. In contrast, respondents merely harped on
a disputable presumption, and sought to affirm this presumption through the self-serving
testimony of the notary public, whose very act of notarizing the Deed of Absolute Sale is
the bone of contention, whose credibility was shown to be wanting, and who is himself
potentially liable for notarizing a simulated document. They also endeavored to
undermine petitioners' expert witness by dismissively characterizing him as "just an
ordinary employee."[36]

III

Rule 130, Section 49 of the Revised Rules on Evidence specifies that courts may admit
the testimonies of expert witnesses or of individuals possessing "special knowledge, skill,
experience or training":

Section 49. Opinion of expert witness. — The opinion of a witness on a matter requiring

special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.

Testimonies of expert witnesses are not absolutely binding on courts. However, courts
exercise a wide latitude of discretion in giving weight to expert testimonies, taking into
consideration the factual circumstances of the case:

Although courts are not ordinarily bound by expert testimonies, they may place whatever
weight they choose upon such testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly within the province of the
trial court to decide, considering the ability and character of the witness, his actions
upon the witness stand, the weight and process of the reasoning by which he has
supported his opinion, his possible bias in favor of the side for whom he testifies, the fact
that he is a paid witness, the relative opportunities for study or observation of the matters
about which he testifies, and any other matters which serve to illuminate his
statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an abuse of that discretion. [37] (Emphasis
supplied)

This analysis applies in the examination of forged documents:

Due to the technicality of the procedure involved in the examination of forged

documents, the expertise of questioned document examiners is usually helpful. These
handwriting experts can help determine fundamental, significant differences in writing
characteristics between the questioned and the standard or sample specimen signatures, as
well as the movement and manner of execution strokes.[38]

Respondents here assail the qualification of National Bureau of Investigation fingerprint

examiner Gomez, pejoratively branding him as "just an ordinary employee." [39] In support
of this dismissive casting of Gomez, respondents noted that he performed such functions
as securing fingerprints from applicants for National Bureau of Investigation clearances
and taking fingerprints of people involved in crimes.[40]

Evidence is concerned with "ascertaining . . . the truth respecting a matter of fact." [41] It is
concerned with what can be objectively established and relies on verifiable actualities.
Opinions are, by definition, subjective. They proceed from impressions, depend on
perception, and are products of personal interpretation and belief. Hence, opinions are
generally inadmissible as evidence.[42]

Opinions, when admissible, must have proper factual basis. They must be supported by
facts or circumstances from which they draw logical inferences. An opinion bereft of
factual basis merits no probative value. People v. Malejana[43] stated the following
regarding expert opinions:

The probative force of the testimony of an expert does not lie in a mere statement of the
theory or opinion of the expert, but rather in the aid that he can render to the courts in
showing the facts which serve as a basis for his criterion and the reasons upon which the
logic of his conclusion is founded.[44] (Emphasis supplied, citation omitted)

The witness rendering an opinion must be credible, [45] in addition to possessing all the
qualifications and none of the disqualifications specified in the Revised Rules on
Evidence.[46] In the case of an expert witness, he or she must be shown to possess
knowledge, skill, experience, or training on the subject matter of his or her testimony.
[47]
 On the other hand, an ordinary witness may give an opinion on matters which are
within his or her knowledge or with which he or she has sufficient familiarity.[48]
The testimony, too, must be credible in itself. In Borguilla v. Court of Appeals,[49] this
Court said:

Evidence to be believed must not only proceed from the mouth of a credible witness, it
must be credible in itself — such as the common experience and observation of mankind
can approve as probable under the circumstances. We have no test of the truth of human
testimony, except its conformity to our knowledge, observation and experience.
Whatever is repugnant to these belongs to the miraculous and is outside of judicial
cognizance.[50]

The availability of direct evidence affects the viability of opinions. If there is a direct
evidence to prove the fact in issue, an opinion may be rendered unnecessary. For
instance, in Cebu Shipyard and Engineering Works, Inc. v. William Lines,[51] where the
origin of a fire was at issue, this Court held that there was no need for the judge to
consider expert opinion:

[T]here is no need for the judge to resort to expert opinion evidence. In the case under
consideration, the testimonies of the fire experts were not the only available evidence on
the probable cause and origin of the fire. There were witnesses who were actually on
board the vessel when the fire occurred. Between the testimonies of the fire experts who
merely based their findings and opinions on interviews and the testimonies of those
present during the fire, the latter are of more probative value.[52]

Contrary to respondents' dismissiveness towards Gomez, his performance of such tasks as

taking fingerprints, even if, for a time it was his main duty, does not, per se, discount
competence. A history of performing this function does not negate any "special
knowledge, skill, experience or training" that Gomez possesses. Despite respondents'
protestations, it remains that Gomez personally scrutinized and compared Rufina's
disputed thumbmarks in the contested Deed of Absolute Sale with her authentic
thumbmarks in the standard documents and detailed his findings in the First Report to
which he testified before the Regional Trial Court. He expounded on his findings in the
Second Report and clarified, contrary to what respondents and the Court of Appeals harp
on, that the findings detailed in it are not in conflict with or otherwise discount the
conclusions stated in the First Report.

Incidentally, this case is not the first instance that this Court sustained Gomez's
competence and credibility. In Rojales v. Dime,[53] this Court relied on the examination
conducted by Gomez to determine the genuineness of the thumbmark appearing on
the pacto de retro subject of that case. Rojales' demonstration of Gomez's competence
and credibility is worth reproducing at length:
Petitioner avers that the [Court of Appeals] erred in relying on the NBI Fingerprint
Examination. She alleges that the opinion of one claiming to be an expert is not binding
upon the court.

There is nothing on record that would compel this Court to believe that said witness,
Fingerprint Examiner Gomez, has improper motive to falsely testify against the petitioner
nor was his testimony not very certain. His testimony is worthy of full faith and credit in
the absence of evidence of an improper motive. His straightforward and consistent
testimonies bear the earmarks of credibility.

Gomez testified during direct and cross examination, the process of examination of the
fingerprints and his conclusion:

ATTY: BELMI:

Q: Will you kindly tell the court what was the result of your examination?
A: After having thorough examination, comparison and analysis, the thumbmark
appearing on the [Pacto] de Retro and the right thumbmark appearing on the original copy of
PC/INP Fingerprint form taken by SPO3 Marcelo Quintin Sosing were impressed by one and
the same person.
....
   
Q: How do you go about this comparison to determine whether that thumbmark [was]
impressed by the same person?
A: We must locate the three elements of comparing, the number 1 is type of fingerprint
pattern.
....
   
A: There are three elements, after knowing the fingerprint pattern and they are of the
same fingerprint the next step is to know the flow of the rages of the fingerprint pattern or
the shape.
....
   
Q: Then what is next?
A: After number 2, the last is the most important one because you must locate the
number of ridges of characteristics and their relationship with each other because it is the
basis of identification of the fingerprint.
   
Q: Meaning the description of the ridges?
A: Yes, sir, the identification features appearing on the fingerprint.
   
Q: What did you see?
A: I found that there were 13 identical points to warrant the positive identification.
   
Q: [Those] 13 points [are] more than enough to determine whether those thumbmark[s]
[are] done by one and the same person?
A: Yes, sir.
....
   
Q: Where did you base your conclusion that the thumbprint on the Pacto de Retro Sale
over and above the name Juana Vda. de Rojales is genuine thumbprint of the same person?
A: Well, we only respon[d]ed to the request of the court to compare with the
thumbprint appearing on the Pacto de Retro Sale to that of the fingerprint appearing on the
thumbprint form.
   
Q: You mean to say you were provided with the standard fingerprint of the subject?
A: Yes, sir.
....
 
COURT:
   
Q: Now, with this photograph blown-up, you have here 13 points, will you please explain
to the court how these 13 points agree from that standard to that questioned document?
A: I found 2x4 bifurcation, it means that single rage splitting into two branches.
   
Q: You pointed out?
A: I found the bifurcation on the standard that corresponds exactly to the bifurcation
which I marked number 1 in both photograph[s].
   
Q: From the center?
A: As to the number and location with respect to the core, I found that both questioned
and standard coincide.
....
   
Q: Now, but the layer does not change in point 1, how many layer from the core?
A: From the core, there are 4 intervening layers from number 1 to number 2 and it
appears also the questioned 4 intervening layers between number 1 and number 2, so, the
intervening rages between ends of th[ese] characteristics are all both in agreement.
....
 
ATTY. SALANGUIT:
   
Q: Can you say that based on the questioned thumbmark, you would be able to arrive
an accurate evaluation between the questioned thumbmark and standard thumbmark?
A: Yes, [ma'am].
   
Q: Even if the questioned thumbmark is a little bit blurred as to the standard
thumbmark?
A: [Even though] the questioned thumbmark is a little bit blurred but still the ridge
characteristics [are] still discernible.
   
Q: You are telling us that among many people here in the world, nobody have the same
thumbmark as another person and that include the thumbmark of a twins?
 A: A: Yes, [ma'am].[54]

This Court finds no reason to favorably consider respondents' attempt at undermining

Gomez's competence.

The credibility of an expert witness does not inhere in his or her person. Rather, he or she
must be shown to possess knowledge, skill, experience, or training on the subject matter
of his or her testimony.[55] In First Nationwide Assurance Corp. v. Court of Appeals,
[56]
 where the identity of the vehicle in question was in issue, this Court considered these
factors in assessing the credibility of the expert witness:

We note that Sergeant Agadulin is a police officer who has adequate knowledge, training
and experience to perform macro-etching examinations. His assertions on this technical
matter are, as the [Court of Appeals] noted, in the nature of expert testimony.
Additionally, as a public officer, he is presumed to have regularly performed his duty. In
the absence of controverting evidence, his testimony is entitled to great weight and
credence.[57] (Citation omitted)

Standards outlined in American jurisprudence illustrate frameworks and standards for

appraising expert testimonies.

In the 1923 case of Frye v. United States,[58] James Alfonso Frye was convicted of
second-degree murder by the lower court after he was disallowed to introduce expert
testimony relating to the results of systolic blood pressure deception test. The United
States Supreme Court, in sustaining the lower court, explained:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in
those cases in which the matter of inquiry is such that inexperienced persons are unlikely
to prove capable of forming a correct judgment upon it, for the reason that the subject-
matter so far partakes of a science, art, or trade as to require a previous habit or
experience or study in it, in order to acquire a knowledge of it. When the question
involved does not lie within the range of common experience or common knowledge, but
requires special experience or special knowledge, then the opinions of witnesses skilled
in that particular science, art, or trade to which the question relates are admissible in
evidence.

Numerous cases are cited in support of this rule. Just when a scientific principle or
discovery crosses the line between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential force of the principle must be
recognized, and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained general acceptance in
the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and
scientific recognition among physiological and psychological authorities as would justify
the courts in admitting expert testimony deduced from the discovery, development, and
experiments thus far made.[59] (Emphasis supplied)

In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
Inc. departed from the Frye standard and articulated a new framework for assessing the
admission of expert testimony.[60] In that case, plaintiffs Jason Daubert and Eric Schuller
attributed their serious birth defects to the drug Bendectin, manufactured by defendant
Dow Chemical Company. They submitted expert testimonies on animal studies showing
a link between Bendectin and malformations, pharmacological studies, and reanalysis of
previously published epidemiological studies. The district court ruled in favor of the
defendant and stated that scientific evidence is admissible only if the principle upon
which it is based is "sufficiently established to have general acceptance in the field to
which it belongs."[61] The Ninth Circuit Court affirmed this Decision after finding that the
plaintiffs' evidence had not yet been accepted as reliable technique by scientists who had
an opportunity to scrutinize and verify the methods.

However, the United States Supreme Court remanded the case after finding the Frye
standard to be mooted by the adoption of the Federal Rules of Evidence, Rule 702, which
stated:

If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.

The United States Supreme Court observed that Rule 702 did not require "general
acceptance" of the Frye standard before expert testimony is admitted. Instead of
following the strict Frye standard, it placed on the judge the duty to act as "gatekeeper"
when faced with a proffer of expert scientific testimony. Thus, the judge must make a
preliminary determination of whether or not the offered testimony is scientific knowledge
and whether or not it will assist the trier of fact to understand or determine a fact in issue.
The following are the standards that should be considered by the judge:

Many considerations will bear on the inquiry, including whether the theory or technique
in question can be (and has been) tested, whether it has been subjected to peer review and
publication, its known or potential error rate, and the existence and maintenance of
standards controlling its operation, and whether it has attracted widespread acceptance
within a relevant scientific community.[62]

However, the standards are not exclusive:

The inquiry is a flexible one, and its focus must be solely on principles and methodology,
not on the conclusions that they generate. Throughout, the judge should also be mindful
of other applicable Rules.[63]

Thus, the United States Supreme Court remanded the case for the application of its
enumerated standards.

In this case, the Regional Trial Court's May 31, 2005 Decision detailed the circumstances
leading to the National Bureau of Investigation's examination of the contentious Deed of
Absolute Sale, respondents' incessant attempts at preventing the examination, and how
Gomez took the witness stand and presented his findings. The Regional Trial Court's
recollection indicates, most notably, that Gomez was not handpicked by petitioners.
Rather, following petitioners' request, Gomez appeared to have been designated by the
National Bureau of Investigation itself to conduct the examination. Thus, any such
determination of Gomez's expertise was not borne by petitioners' innate preference for
him or of their insistence upon him, but by the National Bureau of Investigation's own
confidence in him. This institutional reposition of confidence can only bolster Gomez's
credibility:

To prove that their mother's thumbmarks on the disputed deed of absolute sale were
forged, plaintiffs filed a motion to refer the questioned document to the National Bureau
of Investigation (NBI) for examination. An Order was issued by this Court directing the
Office of the Registry of Deeds for the Province of Cavite to submit to this Court the
original copy of the said title and upon receipt of the same ordered the Branch Clerk of
Court to transmit the same to the NBI. An Omnibus Motion was filed by the defendants
informing this Court that the questioned document was already lost and/or missing
pursuant to the Certification dated April 5, 2000 issued by the Office of the Registry of
Deeds for the Province of Cavite (Exh. 8). Hence, the order to transmit the questioned
document became unavailing and academic. That notwithstanding, the Branch Clerk of
Court transmitted the questioned document to the NBI. Defendants insinuated that the
original questioned document came from an illegitimate and spurious source. However, it
was explained by a representative of the registry, Mr. Agusto Vasquez, that the registrar
asked him to bring the questioned document to the Court and the same was received by
one of the employees of the Court. Further, the said issue has been resolved by this Court
in its Order dated August 14, 2000, pertinent portion of which states that:

"Therefore, the allegations (sic) of the defendants that the said document came from a
spurious [source] is without any basis. This Court assures the defendants and/or any
litigant for that matter that this Court will not allow spurious document[s] to be admitted
by this Court.

WHEREFORE, the Omnibus Motion filed by the defendants is hereby DENIED for lack
of merit."
As basis of the comparison[,] plaintiffs presented, the Kasulatan sa Bilihan ng Lote dated
February 19, 1979 (Exhibit "F"); Kasulatang Paghahati sa Labas ng Hukuman na may
Lakip na Bilihan ng Lupa dated March 31, 1982 (Exhibit "G"); and the Residence
Certificate of Rufina Casimiro dated July 21, 1971 (Exhibit "H") and a receipt issued by
the Rural Bank of Zapote (Exhibit "H-1"), which documents contained the genuine
thumbmarks of Rufina Casimiro.

A fingerprint examiner of the NBI, Eriberto B. Gomez, Jr., took the witness stand. He
testified that pursuant to the order of this Court he conducted an examination to
determine the genuineness of Rufina Casimiro's thumbmarks on the questioned Deed of
Absolute Sale by comparing them with her genuine thumbmarks as appearing on Exhibits
"F", "G" and "H". These documents, containing the genuine thumb marks of Rufina
Casimiro were executed on the dates prior to and after the execution of the questioned
documents. Mr. Gomez prepared enlarged photographs of the questioned and standard
thumbmarks of Rufina Casimiro for better examination and comparison (Exhibit "J").
After examining these thumbmarks, Mr. Gomez concluded in his Technical
Investigation/Identification Report FP Case No. 2000-182-A (Exh. "I") that the purported
thumbmarks of Rufina Casimiro in the alleged Deed of Absolute Sale (Exhibit "D") are
not identical with her standard thumbmarks in Exhibits "F", "G" and "H" and that the
thumbmarks appearing in the said Deed of Absolute Sale (Exhibit "D") were not
impressed by Rufina Casimiro.[64]

IV

Heirs of Gregorio v. Court of Appeals,[65] outlined standards for establishing forgery:

As a rule, forgery cannot be presumed and must be proved by clear, positive and
convincing evidence and the burden of proof lies on the party alleging forgery. The best
evidence of a forged signature in an instrument is the instrument itself reflecting the
alleged forged signature. The fact of forgery can only be established by a comparison
between the alleged forged signature and the authentic and genuine signature of the
person whose signature is theorized upon to have been forged. Without the original
document containing the alleged forged signature, one cannot make a definitive
comparison which would establish forgery. A comparison based on a mere xerox copy or
reproduction of the document under controversy cannot produce reliable results.
[66]
 (Citation omitted)

Here, petitioners submitted for comparison three (3) standard documents bearing the
genuine thumbmarks of Rufina: (1) Kasulatan sa Bilihan ng Lote (Exhibit "F");
(2) Kasulatang Paghahati sa Labas ng Hukuman na may Lakip na Bilihan ng
Lupa (Exhibit "G"); and (3) the Residence Certificate of Rufina (Exhibit "H"). [67] After
examination, Gomez submitted to the Regional Trial Court his Technical
Investigation/Identification Report FP Case No. 2000-182 dated July 13, 2000:
6. RESULT OF EXAMINATION: After having a thorough examination, comparison and
analysis, questioned thumbmarks mentioned in item nos. 5A and 5B are found not
identical with the standard thumbmarks mentioned in item nos. 5C, 5D[,] and 5E.

7. OPINION: In view of the foregoing result of the examination, questioned thumbmark

mentioned in item nos. 5A and 5B were not impressed by Rufina Casimiro.[68]

This Report could not be any clearer. The questioned thumbmarks on the Deed of
Absolute Sale do not belong to Rufina. The questioned thumbmarks were of the "circle
type" while the genuine thumbmarks of Rufina were of the "loop type."[69]

Upon personally perusing the documents, Regional Trial Court Judge Novato T. Cajigal
(Judge Cajigal) reached a similar conclusion:

This Court has examined the said thumbmarks and is convinced and satisfied that they
are very different from her standard thumbmarks in the documents Exhibits "F", "G"[,]
and "H". This difference is further enhanced in the enlarged photographs of these
thumbmarks (Exhibit "J"). It is clear by the naked eyes that Rufina's thumbmarks in the
questioned Deed of Absolute Sale (Exhibit "D") are really the "circle type" while those of
the standard thumbmarks in Exhibits "F", "G"[,] and "H" are the loop type as the NBI
expert technically described them. As the Supreme Court ruled in People vs. Abatayo, 87
Phil. 794, 798, "Thumbmarks never lie". "A comparison of both the differences and
similarities in the questioned thumbmarks (signatures) should have been made to satisfy
the demands of evidence" (Licarte vs, CA, G.R. No. 128899; June 8, 1995). [70]

Judge Cajigal's observations and conclusions are in keeping with the settled principle that
judges exercise independent judgment in appraising the authenticity of a signature, or of a
fingerprint placed in a signature's stead:

A judge must therefore conduct an independent examination of the signature itself in

order to arrive at a reasonable conclusion as to its authenticity and this cannot be done
without the original copy being produced in court.[71]

In reversing the Regional Trial Court, the Court of Appeals emphasized Gomez's Second
Report, which indicated that faint and blurred features of the thumbmarks appearing on
the standard documents prevented "positive identification."[72] Thus, it concluded that "no
comparison may be made between the thumbmarks found in the Deed [Absolute of Sale]
and those found in the standard documents."[73]

However, the Court of Appeals failed to consider that Gomez clarified that all the
requisites for comparing the thumbmarks—(1) fingerprint patterns, (2) flow of ridges,
and (3) location and relationship of their characteristics—had been satisfied. He
specifically stated that first, "[a]ll the standard [thumbmarks] are all in the same
fingerprint pattern";[74] second, "they are also in agreement [as to] the flow [of] ridges";
[75]
 and third, there is no discrepancy as to their ridge characteristics [76]:

ATTY. CORTEZ

Q Can you tell us, Mr. Witness, the requirements before you can render an opinion in the
identity of the standard thumbmark?

WITNESS

A Well, in comparing the prints there are three requirements, (1) to determine the type of
the finger prints pattern; (2) the flow of the ridges; (3) the location of each characteristics
and their relationship to each other, sir.

ATTY. CORTEZ

Q Now with respect to the first requirements (sic) that you mentioned "the general
pattern"?
....

ATTY. CORTEZ

Q Would you say that this standard thumbmark, what can you say about the general
pattern of the thumbmark?

WITNESS

A All the standard are all in the same finger print pattern, sir.

ATTY. CORTEZ

Q How about the second requirements (sic) which is the flow of the ridges, what can you
say about this standard?

WITNESS

A Well, they are also in agreement of the flow [of] ridges of all the standard, sir.

ATTY. CORTEZ

Q And how about the third requirements, the number of ridge characteristics?
WITNESS

A The number of the ridge characteristics because [of:] the none clarity (sic) of th[ese]
characteristics. I only locate[d] one or two points and it is not sufficient for positive
identification. I must locate seven or more ridge characteristics to warrant positive
identification, sir.

ATTY. CORTEZ

Q But will you agree, Mr. Witness that with respect to this point, there is no discrepancy
among the standard thumbmark?

WITNESS

A Well, if I have not meet (sic) all the requirements then I cannot make an opinion
regarding the identification of the standard finger print, sir.

ATTY. CORTEZ

Q My question is not about the identity. My question is pertaining to any discrepancy or

any disagreement?

WITNESS

A There is none, sir.[77] (Emphasis supplied)

The faint and blurred features of the thumbmarks appearing on the standard documents
may have made them less than ideal. Still, Gomez explained that they remained to be
sufficiently consistent, and therefore, suitable for a comparison with the thumbmarks
appearing on the disputed Deed of Absolute Sale. Gomez, too, was particular in rejecting
respondents' counsel's suggestion that the Second Report should "supersede" [78] the First
Report:

ATTY. DELA CUEVA

Q Mr. Witness, this document now marked as Exh. "K" which we are adopting as our
Exh. "6" was prepared by you subsequently to a previous report which is now marked as
Exh. "I", does this report supersede your previous report, Mr. Witness?

WITNESS

A No, Sir.[79]
Thus, Gomez was steadfast on the findings he detailed in his First Report. The First
Report already established that the questioned thumbmarks appearing on the Deed of
Absolute Sale were not Rufina's, as their genuineness is belied by thumbmarks appearing
on the authentic, standard documents. Despite the flaws in the thumbmarks appearing in
the standard documents, the inherent deficiencies of the thumbmarks affixed in the Deed
of Absolute Sale remain.

VI

Respondents' lone witness was Atty. Arcadia Espiritu (Atty. Espiritu), the notary public
who notarized the Deed of Absolute Sale. [80] Atty. Espiritu asserted that the parties to the
Deed of Absolute Sale personally appeared before him and that Rufina affixed her
thumbmarks in his presence.[81]

However, Atty. Espiritu's credibility is highly questionable. It was established during trial
that he notarized an Affidavit of Self-Adjudication in favor of a certain Victor Guinto
(Guinto), where Guinto declared that he was the sole heir of his deceased sister, to the
exclusion of their other siblings.[82] This was despite Atty. Espiritu's personal knowledge,
as a longtime neighbor of Guinto's family, that there were other brothers and sisters.
[83]
 During trial, he even admitted that "he was not 'concerned about the truth and falsities
of entries in the document."'[84]

The Regional Trial Court's observations are on point. It was right to not lend credence to
Atty. Espiritu's testimony:

Thus, the presumption of regularity in the execution of notarial documents [cannot] apply
in this case, despite the testimony of the notary public who notarized the said Deed of
Absolute Sale, whose credibility is in itself doubtful considering his admission that he
prepared and notarized an affidavit of self-adjudication of inherited properties from a
deceased sister (Exhibit "M") inspite (sic) of his personal knowledge that the affiant was
not the sole heir of the said deceased, who has other surviving brothers and sisters as they
were once his neighbors in Zapote, Bacoor, Cavite. No amount of testimonial evidence
could ever alter or detract from the cold physical fact that the questioned thumbmarks are
not identical with the standard thumbmarks. Testimonial evidence cannot prevail over
physical facts.[85]

VII

Petitioners were able to discharge their burden of proving forgery by clear and
convincing evidence. Petitioners themselves recounted in a straightforward manner that
their mother, being illiterate, never dealt with her properties without the assistance of any
of her children.[86] To attest to this, they presented documents bearing the thumbmarks of
their mother, where it appeared that at least one (1) of them was present to assist her.
[87]
 These same documents, when compared with the contentious Deed of Absolute Sale,
demonstrated the falsity of the thumbmarks appearing on the latter. Respondents' cause
may have been supported by the general presumption that notarized documents were duly
executed; however, this presumption must crumble in light of the significantly more
compelling evidence presented by petitioners. As against petitioners' evidence, all that
respondents presented was the testimony of the notarizing lawyer, whose own acts are
clouded with suspicion.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The July 9, 2012
Decision of the Court of Appeals in CA-G.R. CV No. 91767 is REVERSED and SET
ASIDE. The May 31, 2005 Decision of the Regional Trial Court, Branch 19, Bacoor,
Cavite in Civil Case No. BCV 97- 183 is REINSTATED.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 212003, February 28, 2018 ]
PHILIPPINE SPAN ASIA CARRIERS CORPORATION (FORMERLY
SULPICIO LINES, INC.), PETITIONER, V. HEIDI PELAYO, RESPONDENT.

DECISION

LEONEN, J.:

"Not every inconvenience, disruption, difficulty, or disadvantage that an

employee must endure sustains a finding of constructive dismissal." [1] It is an employer's
right to investigate acts of wrongdoing by employees. Employees involved in such
investigations cannot ipso facto claim that employers are out to get them. Their
involvement in investigations will naturally entail some inconvenience, stress, and
difficulty. However, even if they might be burdened - and, in some cases, rather heavily
so - it does not necessarily mean that an employer has embarked on their constructive
dismissal.

This resolves a Petition for Review on Certiorari [2] under Rule 45 of the 1997 Rules of
Civil Procedure praying that the assailed Court of Appeals July 4, 2013 Decision [3] and
February 12, 2014 Resolution[4] in CA-G.R. SP No. 04622 be reversed and set aside.
The assailed Court of Appeals July 4, 2013 Decision found grave abuse of discretion on
the part of the National Labor Relations Commission in issuing its May 27, 2011
Decision[5] and August 31, 2011 Decision[6] holding that respondent Heidi Pelayo
(Pelayo) was not constructively dismissed. The assailed Court of Appeals February 12,
2014 Resolution denied the Motion for Reconsideration [7] of petitioner Philippine Span
Asia Carriers Corporation, then Sulpicio Lines, Inc. (Sulpicio Lines).

Pelayo was employed by Sulpicio Lines as an accounting clerk at its Davao City branch
office. As accounting clerk, her main duties were "to receive statements and billings for
processing of payments, prepare vouchers and checks for the approval and signature of
the branch manager, and release checks for payment."[8]

Sulpicio Lines uncovered several anomalous transactions in its Davao City branch office.
Most notably, a check issued to a certain "J. Josol" [9] had been altered from its original
amount of P20,804.58 to P820,804.58. The signatories to the check were branch manager
Tirso Tan (Tan) and cashier Fely Sobiaco (Sobiaco).[10]

There were also apparent double disbursements. In the first double disbursement, two (2)
checks amounting to P5,312.15 each were issued for a single P5,312.15 transaction with
Davao United Educational Supplies. This transaction was covered by official receipt no.
16527, in the amount of P5,312.15 and dated January 12, 2008. The first check,
Philippine Trust Company (PhilTrust Bank) check no. 2043921, was issued on December
15, 2007. This was covered by voucher no. 227275. The second check, PhilTrust Bank
check no. 2044116, was issued on January 19, 2008 and was covered by voucher no.
227909.[11]

There was another double disbursement for a single transaction. Two (2) checks for
P20,804.58 each in favor of Everstrong Enterprises were covered by official receipt no.
5129, dated January 25, 2008. The first check, PhilTrust Bank check no. 2044156, was
dated January 26, 2008 and covered by voucher no. 228034. The second check, PhilTrust
Bank check no. 2044244, was dated February 9, 2008 and covered by voucher no.
228296.[12]

Another apparent anomaly was a discrepancy in the amounts reflected in what should
have been a voucher and a check corresponding to each other and covering the same
transaction with ARR Vulcanizing. Voucher no. 232550 dated October 30, 2008
indicated only P17,052.00, but the amount disbursed through check no. 2051313
amounted to P29,306.00.[13]

Sulpicio Lines' Cebu-based management team went to Davao to investigate from March 3
to 5, 2010. Pelayo was interviewed by members of the management team as "she was the
one who personally prepared the cash vouchers and checks for approval by Tan and
Sobiaco."[14]
The management team was unable to complete its investigation by March 5, 2010. Thus,
a follow-up investigation had to be conducted. On March 8, 2010, Pelayo was asked to
come to Sulpicio Lines' Cebu main office for another interview. [15] Sulpicio Lines
shouldered all the expenses arising from Pelayo's trip.[16]

In the midst of a panel interview, Pelayo walked out. [17] She later claimed that she was
being coerced to admit complicity with Tan and Sobiaco. [18] Pelayo then returned to
Davao City,[19] where she was admitted to a hospital "because of depression and a nervous
breakdown."[20] She eventually filed for leave of absence and ultimately stopped reporting
for work.[21]

Following an initial phone call asking her to return to Cebu, Sulpicio Lines served on
Pelayo a memorandum dated March 15, 2010, [22] requiring her to submit a written
explanation concerning "double disbursements, payments of ghost purchases and
issuances of checks with amounts bigger than what [were] stated in the
vouchers."[23] Sulpicio Lines also placed Pelayo on preventive suspension for 30 days.
[24]
 It stated:

Among your duties is to receive statements and billings for processing of payments,
prepare vouchers and checks for the signature of the approving authority. In the
preparation of the vouchers and the checks, you also are required to check and to make
sure that the supporting documents are in order. Thus, the double payments and other
payments could not have been perpetra[t]ed without your cooperation and/or neglect of
duty/gross negligence.

You are hereby required to submit within three (3) days from receipt of this letter a
written explanation why no disciplinary action [should] be imposed against you for
dishonesty and/or neglect of duty or gross negligence.[25]

Sulpicio Lines also sought the assistance of the National Bureau of Investigation, which
asked Pelayo to appear before it on March 19, 2010.[26]

Instead of responding to Sulpicio Lines' memorandum or appearing before the National

Bureau of Investigation, Pelayo filed a Complaint against Sulpicio Lines charging it with
constructive dismissal.[27]

Sulpicio Lines denied liability asserting that Pelayo was merely asked to come to Cebu
"to shed light on the discovered anomalies" [28] and was "only asked to cooperate in
prosecuting Tan and Sobiaco."[29] It also decried Pelayo's seeming attempt at "distanc[ing]
herself from the ongoing investigation of financial anomalies discovered."[30]

In her September 17, 2010 Decision, [31] Labor Arbiter Merceditas C. Larida (Labor
Arbiter Larida) held that Sulpicio Lines constructively dismissed Pelayo. She faulted
Sulpicio Lines for harassing Pelayo when her participation in the uncovered anomalies
was "far-fetched."[32] Labor Arbiter Larida relied mainly on the affidavit of Alex Te (Te),
[33]
 an employee of Sulpicio Lines assigned at the Accounting Department of its Cebu
City main office. Te's affidavit was attached to the Secretary's Certificate, [34] attesting to
Sulpicio Lines' Board Resolution authorizing Te to act in its behalf in prosecuting Tan
and Sobiaco. This affidavit detailed the duties of Tan and Sobiaco, as branch manager
and cashier, respectively, and laid out the bases for their prosecution. [35] Labor Arbiter
Larida noted that the affidavit's silence on how Pelayo could have been involved
demonstrated that it was unjust to suspect her of wrongdoing.[36]

In its May 27, 2011 Decision,[37] the National Labor Relations Commission reversed
Labor Arbiter Larida's Decision. It explained that the matter of disciplining employees
was a management prerogative and that complainant's involvement in the investigation
did not necessarily amount to harassment.[38] The dispositive portion of this Decision
read:

WHEREFORE, foregoing premises considered, the appeal is GRANTED and the

appealed decision is SET ASIDE and VACATED. In lieu thereof, a new judgment is
rendered DISMISSING the above-entitled case for lack of merit.

SO ORDERED.[39]

In its assailed July 4, 2013 Decision, the Court of Appeals found grave abuse of
discretion on the part of the National Labor Relations Commission in reversing Labor
Arbiter Larida's Decision.[40]

Following the denial of its Motion for Reconsideration, [41] Sulpicio Lines filed the present
Petition.

For resolution is the issue of whether or not the Court of Appeals erred in finding grave
abuse of discretion on the part of the National Labor Relations Commission in ruling that
respondent Heidi Pelayo's involvement in the investigation conducted by petitioner did
not amount to constructive dismissal.

The Court of Appeals must be reversed.

An employer who conducts investigations following the discovery of misdeeds by its

employees is not being abusive when it seeks information from an employee involved in
the workflow which occasioned the misdeed. Basic diligence impels an employer to
cover all bases and inquire from employees who, by their inclusion in that workflow, may
have participated in the misdeed or may have information that can lead to the
perpetrator's identification and the employer's adoption of appropriate responsive
measures. An employee's involvement in such an investigation will naturally entail
difficulty. This difficulty does not mean that the employer is creating an inhospitable
employment atmosphere so as to ease out the employee involved in the investigation.

While adopted with a view "to give maximum aid and protection to labor," [42] labor laws
are not to be applied in a manner that undermines valid exercise of management
prerogative.

Indeed, basic is the recognition that even as our laws on labor and social justice impel a
"preferential view in favor of labor,"

[e]xcept as limited by special laws, an employer is free to regulate, according to his own
discretion and judgment, all aspects of employment, including hiring, work assignments,
working methods, time, place and manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations, transfer of employees, work
supervision, lay-off of workers and the discipline, dismissal and recall of work.
[43]
 (Emphasis supplied).

The validity of management prerogative in the discipline of employees was sustained by

this Court in Philippine Airlines v. National Labor Relations Commission,[44] "In general,
management has the prerogative to discipline its employees and to impose appropriate
penalties on erring workers pursuant to company rules and regulations."[45]

The rationale for this was explained in Rural Bank of Cantilan, Inc. v. Julve:[46]

While the law imposes many obligations upon the employer, nonetheless, it also protects
the employer's right to expect from its employees not only good performance, adequate
work, and diligence, but also good conduct and loyalty. In fact, the Labor Code does not
excuse employees from complying with valid company policies and reasonable
regulations for their governance and guidance.[47]

Accordingly, in San Miguel Corporation v. National Labor Relations Commission:[48]

An employer has the prerogative to prescribe reasonable rules and regulations necessary
for the proper conduct of its business, to provide certain disciplinary measures in order to
implement said rules and to assure that the same would be complied with. An employer
enjoys a wide latitude of discretion in the promulgation of policies, rules and regulations
on work-related activities of the employees.

It is axiomatic that appropriate disciplinary sanction is within the purview of management

imposition. Thus, in the implementation of its rules and policies, the employer has the
choice to do so strictly or not, since this is inherent in its right to control and manage its
business effectively.[49]

II

Disciplining employees does not only entail the demarcation of permissible and
impermissible conduct through company rules and regulations, and the imposition of
appropriate sanctions. It also involves intervening mechanisms "to assure that [employers'
rules] would be complied with."[50] These mechanisms include the conduct of
investigations to address employee wrongdoing.

While due process, both substantive and procedural, is imperative in the discipline of
employees, our laws do not go so far as to mandate the minutiae of how employers must
actually investigate employees' wrongdoings. Employers are free to adopt different
mechanisms such as interviews, written statements, or probes by specially designated
panels of officers.

In the case of termination of employment for offenses and misdeeds by employees, i.e.,
for just causes under Article 282 of the Labor Code, [51] employers are required to adhere
to the so-called "two-notice rule."[52] King of Kings Transport v. Mamac [53] outlined what
"should be considered in terminating the services of employees"[54] :

(1) The first written notice to be served on the employees should contain the specific
causes or grounds for termination against them, and a directive that the employees are given
the opportunity to submit their written explanation within a reasonable period. "Reasonable
opportunity" under the Omnibus Rules means every kind of assistance that management
must accord to the employees to enable them to prepare adequately for their defense. This
should be construed as a period of at least five (5) calendar days from receipt of the notice to
give the employees an opportunity to study the accusation against them, consult a union
official or lawyer, gather data and evidence, and decide on the defenses they will raise
against the complaint. Moreover, in order to enable the employees to intelligently prepare
their explanation and defenses, the notice should contain a detailed narration of the facts
and circumstances that will serve as basis for the charge against the employees. A general
description of the charge will not suffice. Lastly, the notice should specifically mention which
company rules, if any, are violated and/or which among the grounds under Art. 282 is being
charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing
or conference wherein the employees will be given the opportunity to: (1) explain and clarify
their defenses to the charge against them; (2) present evidence in support of their defenses;
and (3) rebut the evidence presented against them by the management. During the hearing
or conference, the employees are given the chance to defend themselves personally, with
the assistance of a representative or counsel of their choice. Moreover, this conference or
hearing could be used by the parties as an opportunity to come to an amicable settlement.
 (3) After determining that termination of employment is justified, the employers shall
serve the employees a written notice of termination indicating that: (1) all circumstances
involving the charge against the employees have been considered; and (2) grounds have
been established to justify the severance of their employment. [55] (Citation omitted)

The two-notice rule applies at that stage when an employer has previously determined
that there are probable grounds for dismissing a specific employee. The first notice
implies that the employer already has a cause for termination. The employee then
responds to the cause against him or her. The two-notice rule does not apply to anterior,
preparatory investigations precipitated by the initial discovery of wrongdoing. At this
stage, an employer has yet to identify a specific employee as a suspect. These preparatory
investigations logically lead to disciplinary proceedings against the specific employee
suspected of wrongdoing, but are not yet part of the actual disciplinary proceedings
against that erring employee. While the Labor Code specifically prescribes the two-notice
rule as the manner by which an employer must proceed against an employee specifically
charged with wrongdoing, it leaves to the employer's discretion the manner by which it
shall proceed in initially investigating offenses that have been uncovered, and whose
probable perpetrators have yet to be pinpointed.

Thus, subject to the limits of ethical and lawful conduct, an employer is free to adopt any
means for conducting these investigations. They can, for example, obtain information
from the entire roster of employees involved in a given workflow. They can also enlist
the aid of public and private investigators and law enforcers, especially when the
uncovered iniquity amounts to a criminal offense just as much as it violates company
policies.

When employee wrongdoing has been uncovered, employers are equally free to adopt
contingency measures; lest they, their clients, and other employees suffer from exigencies
otherwise left unaddressed. These measures may be enforced as soon as an employee's
wrongdoing is uncovered, may extend until such time that disciplinary proceedings are
commenced and terminated, and in certain instances, even made permanent. Employers
can rework processes, reshuffle assignments, enforce stopgap measures, and put in place
safety checks like additional approvals from superiors. In Mandapat v. Add Force
Personnel Services, Inc.,[56] this Court upheld the temporary withholding of facilities and
privileges as an incident to an ongoing investigation. Thus, this Court found no fault in
the disconnection of an employee's computer and the suspension of her internet access
privilege.[57] Employers can also place employees under preventive suspension, not as a
penalty in itself, but as an intervening means to enable unhampered investigation and to
foreclose "a serious and imminent threat to the life or property of the employer or of the
employee's co-workers."[58] As Artificio v. National Labor Relations
[59]
Commission  illustrated:
In this case, Artificio's preventive suspension was justified since he was employed as a
security guard tasked precisely to safeguard respondents' client. His continued presence
in respondents' or its client's premises poses a serious threat to respondents, its employees
and client in light of the serious allegation of conduct unbecoming a security guard such
as abandonment of post during night shift duty, light threats and irregularities in the
observance of proper relieving time.

Besides, as the employer, respondent has the right to regulate, according to its discretion
and best judgment, all aspects of employment, including work assignment, working
methods, processes to be followed, working regulations, transfer of employees, work
supervision, lay-off of workers and the discipline, dismissal and recall of workers.
Management has the prerogative to discipline its employees and to impose appropriate
penalties on erring workers pursuant to company rules and regulations.

This Court has upheld a company's management prerogatives so long as they are
exercised in good faith for the advancement of the employer's interest and not for the
purpose of defeating or circumventing the rights of the employees under special laws or
under valid agreements.[60]

III

The standards for ascertaining constructive dismissal are settled:

There is constructive dismissal when an employer's act of clear discrimination,

insensibility or disdain becomes so unbearable on the part of the employee so as to
foreclose any choice on his part except to resign from such employment. It exists where
there is involuntary resignation because of the harsh, hostile and unfavorable conditions
set by the employer. We have held that the standard for constructive dismissal is
"whether a reasonable person in the employee's position would have felt compelled to
give up his employment under the circumstances."[61]

This Court has, however, been careful to qualify that "[n]ot every inconvenience,
disruption, difficulty, or disadvantage that an employee must endure sustains a finding of
constructive dismissal."[62] In a case where the employee decried her employers' harsh
words as supposedly making for a work environment so inhospitable that she was
compelled to resign, this Court explained:

The unreasonably harsh conditions that compel resignation on the part of an employee
must be way beyond the occasional discomforts brought about by the misunderstandings
between the employer and employee. Strong words may sometimes be exchanged as the
employer describes her expectations or as the employee narrates the conditions of her
work environment and the obstacles she encounters as she accomplishes her assigned
tasks. As in every human relationship, there are bound to be disagreements.
However, when these strong words from the employer happen without palpable reason or
are expressed only for the purpose of degrading the dignity of the employee, then a
hostile work environment will be created. In a sense, the doctrine of constructive
dismissal has been a consistent vehicle by this Court to assert the dignity of labor. [63]

Resolving allegations of constructive dismissal is not a one-sided affair impelled by

romanticized sentiment for a preconceived underdog. Rather, it is a question of justice
that "hinges on whether, given the circumstances, the employer acted fairly in exercising
a prerogative."[64] It involves the weighing of evidence and a consideration of the "totality
of circumstances."[65]

IV

This Court fails to see how the petitioner's investigation amounted to respondent's
constructive dismissal.

The assailed Court of Appeals July 4, 2013 Decision devoted all of three (3)
paragraphs[66] in explaining why respondent was constructively dismissed. It anchored its
conclusion on how "petitioner was made to admit the commission of the crime," [67] and
on how "[respondent] was compelled to give up her employment due to [petitioner's]
unfounded, unreasonable and improper accusations, which made her employment
unbearable."[68]

The Court of Appeals was in serious error.

The most basic flaw in the Court of Appeals' reasoning is its naive credulity. It did not
segregate verified facts from impressions and bare allegations. It was quick to lend
credence to respondent's version of events and her bare claim that she "was made to
admit the commission of the crime."[69]

As it stands, all that have been ascertained are that: first, petitioner discovered anomalies
in its Davao branch; second, members of its management team went to Davao to
investigate ; third, the investigation involved respondent considering that, as accounting
clerk, her main duties were "to receive statements and billings for processing of
payments, prepare vouchers and checks for the approval and signature of the Branch
Manager, and release the checks for cash payment"; [70] fourth, the investigation in Davao
could not be completed for lack of time; fifth, respondent was made to come to
petitioner's Cebu main office - all expense paid - for the continuation of the investigation;
sixth, in Cebu, respondent was again interviewed; seventh, respondent walked out in the
midst of this interview.

There is no objective proof demonstrating how the interview in Cebu actually proceeded.
Other than respondent's bare allegation, there is nothing to support the claim that her
interviewers were hostile, distrusting, and censorious, or that the interview was a mere
pretext to pin her down. Respondent's recollection is riddled with impressions,
unsupported by independently verifiable facts. These impressions are subjective products
of nuanced perception, personal interpretation, and ingrained belief that cannot be
appreciated as evidencing "the truth respecting a matter of fact."[71]

Respondent's subsequent hospitalization does not prove harassment or coercion to make

an admission either. The mere fact of its occurrence is not an attestation that respondent's
interview proceeded in the manner that she claimed it did. While it proves that she was
stressed, it does not prove that she was stressed specifically because she was cornered
into admitting wrongdoing.

Human nature dictates that involvement in investigations for wrongdoing, even if one is
not the identified suspect, will entail discomfort and difficulty. Indeed, stress is merely
the "response to physical or psychological demands on a person." [72] Even positive stimuli
can become stressors.[73] Stress, challenge, and adversity are the natural state of things
when a problematic incident is revealed and begs to be addressed. They do not mean that
an employer is bent on inflicting suffering on an employee.

Different individuals react to stress differently "and some people react to stress by getting
sick."[74] Stress is as much a matter of psychological perception as it is of physiological
reaction. Respondent's confinement at a hospital proves that, indeed, she was stressed at
such a degree that it manifested physically. It may also be correlated with the stressors
that respondent previously encountered. Among these stressors was her interview. One
can then reasonably say that respondent's interview may have been difficult for her.
However, any analysis of causation and correlation can only go as far as this. The
evidence does not lead to an inescapable conclusion that respondent's confinement was
solely and exclusively because of how respondent claims her interviewers incriminated
her.

The discomfort of having to come to the investigation's venue, the strain of recalling and
testifying on matters that transpired months prior, the frustration that she was being
dragged into the wrongdoing of other employees—if indeed she was completely innocent
—or the trepidation that a reckoning was forthcoming—if indeed she was guilty—and
many other worries doubtlessly weighed on respondent. Yet, these are normal burdens
cast upon her plainly on account of having to cooperate in the investigation. They
themselves do not translate to petitioner's malice. Respondent's physical response may
have been acute, but this, by itself, can only speak of her temperament and physiology. It
would be fallacious to view this physical response as proof of what her interviewers
actually told her or did to her.

Indeed, it was possible that respondent was harassed. But possibility is not proof. Judicial
and quasi-judicial proceedings demand proof. Respondent's narrative is rich with
melodramatic undertones of how she suffered a nervous breakdown, but is short of
prudent, verifiable proof. In the absence of proof, it would be a miscarriage of justice to
sustain a party-litigant's allegation.

What is certain is that there were several anomalies in petitioner's Davao branch. It made
sense for petitioner to investigate these anomalies. It also made sense for respondent to be
involved in the investigation.

Contrary to Labor Arbiter Larida's conclusion, respondent's connection with the

uncovered anomalies was not "far-fetched."[75] The anomalies related to discrepancies
between vouchers and checks, multiple releases of checks backed by as many vouchers
(even if there had only been one transaction), and a check altered to indicate a larger
amount, thereby enabling a larger disbursement. Certainly, it made sense to involve in the
investigation the accounting clerk whose main duty was to "prepare vouchers and checks
for the approval and signature of the Branch Manager, and release the checks for cash
payment."[76]

Labor Arbiter Larida's reliance on Te's affidavit is misplaced. That affidavit was prepared
to facilitate the criminal prosecution of Tan, the branch manager, and Sobiaco, the
cashier.[77] It naturally emphasized Tan's and Sobiaco's functions, and related these to the
uncovered anomalies. It would have been absurd to make respondent a focal point as she
was extraneous to the criminal suit against Tan and Sobiaco. The affidavit was reticent
about respondent because it did not have to discuss her.

If at all, Te's affidavit even militates against respondent's claim that petitioner was out to
get her. For if petitioner was indeed bent on pinning her down, it was foolhardy for it to
concentrate its attempts at criminal prosecution on Tan and Sobiaco.

Respondent cannot point to petitioner's referral to the National Bureau of Investigation as

proof of petitioner's malevolence. In the first place, petitioner was free to refer the
commission of crimes to the National Bureau of Investigation. Republic Act No. 157,
[78]
 which was in effect until the National Bureau of Investigation's functions were
calibrated in 2016 by Republic Act No. 10867,[79] enabled the National Bureau of
Investigation "[t]o render assistance, whenever properly requested in the investigation or
detection of crimes and other offenses."[80] Moreover, petitioner's efforts show that it
opted to avail of legitimate, official channels for conducting investigations. Petitioner's
actions demonstrate that rather than insisting on its own position and proceeding with
undue haste, it was submitting to the wisdom of an independent, official investigator and
was willing to await the outcome of an official process. While this could have also led to
criminal prosecution, it still negates malicious fixation. Indeed, if petitioner's focus was
to subvert respondent, it could have just lumped her with Tan and Sobiaco. This would
have even been to petitioner's advantage as joining all defendants in a single case would
have been more efficient and economical.
In any case, for the very reason of her main functions as accounting clerk, it made sense
to view respondent with a degree of suspicion. It was only logical for petitioner to inquire
into how multiple vouchers and checks could have passed the scrutiny of the officer
tasked to prepare them. It was not capricious for petitioner to ponder if its accounting
clerk acted negligently or had allowed herself to be used, if not acted with deliberate
intent to defraud.

Even if petitioner were to completely distance itself from judicious misgivings against
respondent, elect to not treat her as a suspect, and restrict itself to Tan's and Sobiaco's
complicity, it was still reasonable for it to involve respondent in its investigation. Given
her direct interactions with Tan and Sobiaco and her role in the workflow for payments
and disbursements, it was wise, if not imperative, to invoke respondent as a witness.

In prior jurisprudence, this Court has been so frank as to view an employee's preemption
of investigation as a badge of guilt. In Mandapat v. Add Force Personnel Services, Inc.,
[81]
 this Court quoted with approval the following findings of the Court of Appeals:

Unfortunately, however, before the investigation could proceed to the second step of the
termination process into a hearing or conference, Mandapat chose to resign from her job.
Mandapat's bare allegation that she was coerced into resigning can hardly be given
credence in the absence of clear evidence proving the same. No doubt, Mandapat read the
writing on the wall, knew that she would be fired for her transgressions, and beat the
company to it by resigning. Indeed, by the disrespectful tenor of her memorandum,
Mandapat practically indicated that she was no longer interested in continuing cordial
relations, much less gainful employment with Add Force.[82] (Citation omitted)

This Court will not be so intrepid in this case as to surmise that respondent was truly
complicit in the uncovered anomalies and that termination of employment for just cause
was a foregone conclusion which she was merely trying to evade by ceasing to report to
work. Still, fairness dictates that this Court decline to condone her acts in preempting and
refusing to cooperate in a legitimate investigation, only to cry constructive dismissal. To
do so would be to render inutile legitimate measures to address employee iniquity. It
would be to send a chilling effect against bona fide investigations, for to investigate -
riddled as it is with the strain on employees it naturally entails - would be to court
liability for constructive dismissal. Employees cannot tie employers' hands,
incapacitating them, and preemptively defeating investigations with laments of how the
travails of their involvement in such investigations translates to their employers'
fabrication of an inhospitable employment atmosphere so that an employee is left with no
recourse but to resign.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed July
4, 2013 Decision and February 12, 2014 Resolution of the Court of Appeals in CA-G.R.
SP No. 04622 are REVERSED and SET ASIDE. The National Labor Relations
Commission May 27, 2011 and August 31, 2011 Decisions in NLRC No. MAC-01-
011835-2011 (RAB-XI-03-00352-2010) are REINSTATED.

SO ORDERED.

EN BANC
[ G.R. No. 218232, July 24, 2018 ]
RAMON "BONG" B. REVILLA, JR., PETITIONER, VS. SANDIGANBAYAN
(FIRST DIVISION) AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

[G.R. No. 218235]

RICHARD A. CAMBE, PETITIONER, VS. SANDIGANBAYAN (FIRST

DIVISION), PEOPLE OF THE PHILIPPINES, AND OFFICE OF THE
OMBUDSMAN, RESPONDENTS.

[G.R. No. 218266]

JANET LIM NAPOLES, PETITIONER, VS. SANDIGANBAYAN (FIRST

DIVISION), CONCHITA CARPIO MORALES, IN HER CAPACITY AS
OMBUDSMAN, AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

[G.R. No. 218903]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. SANDIGANBAYAN

(FIRST DIVISION), RAMON "BONG" B. REVILLA, JR., AND RICHARD A.
CAMBE, RESPONDENTS.

[G.R. No. 219162]

RAMON "BONG" B. REVILLA, JR., PETITIONER, VS. SANDIGANBAYAN

(FIRST DIVISION) AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

CARPIO, J.:

The Case
The petitions for certiorari[1] in G.R. Nos. 218232, 218235, and 218266, filed by
petitioners Ramon "Bong" B. Revilla, Jr. (Revilla), Richard A. Cambe (Cambe), and Janet
Lim Napoles (Napoles), respectively, assail the Resolution [2] dated 1 December 2014 of
the Sandiganbayan denying them bail and the Resolution [3] dated 26 March 2015
denying their motion for reconsideration in Criminal Case No. SB-14-CRM-0240.

In G.R. No. 218903, the Office of the Ombudsman assails the Resolution [4] dated 4
September 2014 of the Sandiganbayan denying the prosecution's motion to transfer the
place of detention of Revilla and Cambe, and the Resolution [5] dated 20 May 2015
denying the motion for reconsideration. In G.R. No. 219162, Revilla assails the
Resolution[6] dated 5 February 2015 of the Sandiganbayan granting the prosecution's
motion for the issuance of a writ of preliminary attachment and the Resolution [7] dated
28 May 2015 denying his motion for reconsideration.

The Facts

The cases before us stemmed from the Information dated 5 June 2014 filed by the
Office of the Ombudsman in the Sandiganbayan charging petitioners Revilla, Cambe, and
Napoles, among others, with the crime of Plunder, defined and penalized under Section
2 of Republic Act No. (RA) 7080, as amended. The Amended Information [8] reads:
In 2006 to 2010, or thereabout, in the Philippines, and within this Honorable
Court's jurisdiction, above-named accused RAMON "BONG" BAUTISTA REVILLA, JR., then
a Philippine Senator and RICHARD ABDON CAMBE, then DIRECTOR III at the Office of
Senator Revilla, Jr., both public officers, committing the offense in relation to their
respective offices, conspiring with one another and with JANET LIM NAPOLES, RONALD
JOHN B. LIM, and JOHN RAYMUND S. DE ASIS, did then and there willfully, unlawfully,
and criminally amass, accumulate and/or acquire ill-gotten wealth amounting to at least
TWO HUNDRED TWENTY FOUR MILLION FIVE HUNDRED TWELVE THOUSAND FIVE
HUNDRED PESOS (Php224,512,500.00), through a combination or series of overt
criminal acts, as follows:
a) by repeatedly receiving from NAPOLES and/or her representatives LIM, DE
ASIS, and others, kickbacks or commissions under the following circumstances: before,
during and/or after the project identification, NAPOLES gave, and REVILLA, JR. and/or
CAMBE received, a percentage of the cost of a project to be funded from REVILLA, JR.'s
Priority Development Assistance Fund (PDAF), in consideration of REVILLA, JR.'s
endorsement, directly or through CAMBE, to the appropriate government agencies, of
NAPOLES' non-government organizations which became the recipients and/or target
implementors of REVILLA, JR.'s PDAF projects, which duly-funded projects turned out to
be ghosts or fictitious, thus enabling NAPOLES to misappropriate the PDAF proceeds for
her personal gain;

b) by taking undue advantage, on several occasions, of their official positions, authority,

relationships, connections, and influence to unjustly enrich themselves at the expense
and to the damage and prejudice, of the Filipino people and the Republic of the
Philippines.
CONTRARY TO LAW.[9]
Upon arraignment, Napoles and Cambe pleaded not guilty to the charge against
them, while petitioner Revilla refused to enter any plea; thus, the Sandiganbayan
entered a plea of not guilty in his behalf pursuant to Section 1(c), Rule 116 of the Rules
of Court.[10]

In a Resolution[11] dated 19 June 2014, the Sandiganbayan issued warrants of arrest

against Revilla, Cambe, and Napoles. On the same day, Revilla voluntarily surrendered
to the Philippine National Police (PNP) and filed a Motion to Elect Detention Facilities Ad
Cautelam[12] praying for his detention at the PNP Custodial Center in Camp Crame. On 20
June 2014, Cambe also voluntarily surrendered to the Sandiganbayan and filed an
Urgent Motion to Commit Accused to Criminal Investigation and Detection Group (CIDG)
[13]
 pending trial of the case.

In two separate Resolutions[14] both dated 20 June 2014, the Sandiganbayan ordered the
turn over of Revilla and Cambe to the PNP CIDG, Camp Crame, Quezon City for
detention at its PNP Custodial Center Barracks.

G.R. Nos.  218232, 218235 and 218266

Revilla filed a Petition for Bail Ad Cautelam dated 20 June 2014; Cambe filed an
Application for Bail[15] dated 23 June 2014; and Napoles filed a Joint Petition for Bail
dated 25 June 2014, together with co-accused Ronald John Lim (Lim) and John Raymund
De Asis (De Asis).[16]

Thereafter, the Sandiganbayan conducted the bail hearings for Revilla, Cambe, and
Napoles.

During the bail hearings, the prosecution presented nine witnesses, namely:
Commission on Audit (COA) Assistant Commissioner in the Special Services Sector Susan
P. Garcia; Department of Budget and Management (DBM) Directors Carmencita N.
Delantar and Lorenzo C. Drapete; the whistleblowers Benhur K. Luy (Luy), Merlina P.
Suñas (Suñas), Marina C. Sula (Sula), and Mary Arlene Joyce B. Baltazar (Baltazar);
National Bureau of Investigation (NBI) Special Investigator III Joey I. Narciso (Narciso);
and Anti-Money Laundering Council (AMLC) Bank Officer II Atty. Leigh Vhon Santos
(Santos).

The Sandiganbayan summarized the prosecution's evidence as follows:

From 2007 to 2009, accused Revilla was allocated and utilized [Priority
Development Assistance Fund (PDAF)] in the total amount of P517,000,000.00, covered
by twelve (12) [Special Allotment Release Orders (SAROs)], for livelihood and
agricultural projects. He named the [Technology Livelihood Resource Center (TLRC),
National Agri-Business Corporation (NABCOR), and National Livelihood Development
Corporation (NLDC)] to be the [implementing agencies (IAs)], and endorsed five (5) of
Napoles' [non-governmental organization (NGOs)], i.e., [Agri & Economic Program for
Farmers Foundation, Inc. (AEPFFI), Philippine Social Development Foundation, Inc.
(PSDFI), Masaganang Ani Para sa Magsasaka Foundation, Inc. (MAMFI), Social
Development Program for Farmers Foundation, Inc. (SDPFFI), and Agricultura Para Sa
Magbubukid Foundation, Inc. (APMFI),] as project partners. Of the 12 SAROs, Luy
identified six (6) SAROs in his Summary of Rebates, showing how he came up with the
supposed P224,512,500.00 rebates/commissions/kickbacks mentioned in the
Information. The six (6) SAROs with their corresponding amounts, beneficiary NGOs, IAs,
and the amount of commissions received by Revilla, through Cambe, mentioned in Luy's
Summary are shown in the table below:

TABLE A

Amoun Rebates Received

Date
SARO t IA NGO (Php)
Received
(Php)
1.
25 Marc
ROCS-07- TLRC AEPFFI 7.5 million
million h 27, 2007
05486
2. 65 NABCO MAMFI June
10 million
ROCS-08- million R / SDPFFI 24, 2008
17,250,000.00
05254 July 3, 2008
3. 15 NABCO MAMFI 7,750,000.00 July
ROCS-08- million R 23, 2008
05660
4. D- 40 Dec.
TLRC SDPFFI 17 million
08-9558 million 5, 2008
5. 40 TLRC SDPFFI Dec.
2 million
ROCS-08- million 12, 2008
18 million
09789 Dec. 15, 2008
6. G- 80 NLDC AEPFFI 9 million Oct.
09-07065 million and 9 million 6, 2009
APMFI 2 million Oct. 6, 2009
12 million Oct. 6, 2009
8 million Oct. 22, 2009
Oct. 22, 2009
TOTA Php Php119,500,000.0
 
L 265 million 0

Other commissions without corresponding SARO numbers lifted from Luy's Summary
are shown hereunder.

TABLE B

Rebates Received
Date Received IA/Particulars
(Php)
April 6, 2006 PDAF-DA 2006 5 million
June 6, 2006 DA - 2006 5 million
April 12, 2007 DA - 50 M 9.5 million
PDAF-DA 50 M and TLRC 50
April 19, 2007 3 million
M 2007
August 2, 2007   2 million
August 10, 2007   3 million
October 16, 2007 PDAF 82 M 5 million
October 25, 2007 PDAF 82 M 2 million
PDAF DA and TLRC 82 M
November 15, 2007 5 million
2007 project
November 23, 2007 PDAF 82 M project 3.5 million
December 21, 2007 PDAF 82 M project 10 million
December 26, 2007 PDAF 82 M project 10.5 million
May 9, 2008 PDAF 80 M 5 million
October 24, 2008 PDAF 50 M 3 million
March 17, 2010   28,512,500.00
April 28, 2010   5 million
     
TOTAL   Php105,012,500.00
     
 Total Rebates
Table A + Table B Php224,512,500.00
Received

Accused Revilla's commissions represented 50% of the project cost, 25% percent of
which was released by accused Napoles upon showing that the DBM already received
accused Revilla's endorsement letter with project listings. The other 25% was released
upon issuance of the SARO. On the other hand, accused Cambe's share was 5% of the
project cost.

But there were instances that, prior to the issuance of the SARO and preempting its
release, accused Revilla advanced money from accused Napoles. There were also times
that his share was given to him in tranches until the full amount was paid. Thus, there
appear entries in Luy's Summary of Rebates without corresponding SARO numbers, and
in amounts less than 25% or 50% of the amount of the SARO. Accused Cambe got his
commission either together with that of accused Revilla or separately. To acknowledge
receipt of the rebates for himself or that for accused Revilla, accused Napoles' office had
accused Cambe sign JLN vouchers which, however, were already shredded upon the
instruction of accused Napoles.

Upon release of the SARO, documents like letters signed by accused Revilla indorsing
accused Napoles' NGO, MOAs signed by accused Cambe, project proposal, and
foundation profile, were submitted to the IA.

Subsequently, the IA, after deducting a 3% management fee, released a check in the
name of the NGO endorsed by accused Revilla. Accused Napoles had either the
president of the payee NGO or anybody from his trusted employees receive the check.
Accused Napoles' representative signed the IA voucher and, in return, issued a receipt
to the IA in the name of the foundation.

The check was then deposited to the account of the payee foundation. After it was
cleared, accused Napoles had her trusted employees withdraw the proceeds of the
check. The money was brought to accused Napoles, usually to her office at 2502
Discovery Center, and was disposed of at her will or upon her instruction. Part of the
proceeds was used to pay the commissions of accused Revilla and Cambe. Some were
kept at the office vault or was brought to her condo unit at 18D Pacific Plaza. Accused
Napoles' share was pegged at 32% and 40%, depending on the IA, and she used it to buy
dollars and to acquire properties in the Philippines and abroad. She also made deposits
in a foreign account to support her daughter Jean and accused Napoles' brother Reynald
Lim in the US.

To make it appear that there were implementations of the projects for which accused
Revilla's PDAFs were intended, the NGOs submitted liquidation documents such as
official receipts, delivery receipts, accomplishment reports, which were all fake, and lists
of beneficiaries which were just fabricated having only signed by Napoles' employees,
children, household helpers, drivers, and security guards. The receipts were issued by
bogus suppliers which were likewise owned or controlled by accused Napoles. [17]
On the other hand, the defense presented Atty. Desiderio A. Pagui (Pagui), a
lawyer and retired document examiner of the NBI, as expert witness. In his Report No.
09-10-2013, attached to his Judicial Affidavit dated 12 November 2014 and adopted as
his direct testimony, Pagui stated that upon comparison of Revilla's purported
signatures on the photocopies of the PDAF documents and the standard documents
bearing Revilla's authentic signature, the purported signatures are not authentic and
affixed by Revilla. Pagui examined the originals and photocopies of the PDAF documents
in open court using a magnifying glass, and he maintained that the purported signatures
are not authentic and affixed by Revilla. Pagui likewise testified that he also examined
the photocopies of documents with signatures of Cambe and his findings were
embodied in Report No. 10-11-2013.

On cross-examination, Pagui testified that during his stint as document examiner in the
NBI, it would take them an average of one or two days to examine a signature, their
findings would be reviewed by the majority of the examiners present in the Questioned
Document Division of the NBI, and it was the NBI's policy not to examine photocopies of
documents as safety precaution. He, however, believed that an examination of the
photocopies can now be made since there are already clear copies. He confirmed that it
took him three months after the submission of the specimen signature and questioned
signature to finish his Report, while it took him only a few minutes to make a conclusion
that the photocopies are faithful reproduction of the original. Pagui was paid a
professional fee of P200,000.00 for examining the signatures of Revilla and Cambe.

Cambe dispensed with the presentation of his witness, Fabian S. Fabian, supervisor of
the Records Section of the Philippine Airlines after the parties stipulated on the
authenticity and due execution of the Certification he issued and the Passenger
Manifest for Flight Nos. PR 102 and PR 103. Napoles likewise dispensed with the
testimony of Joel M. de Guzman, representative of the Bureau of Immigration, after the
parties stipulated on the authenticity and due execution of her immigration records.
Both Cambe and Napoles adopted the direct examination of Pagui.

The Sandiganbayan thereafter admitted all the documentary exhibits of Revilla, Cambe,
and Napoles except for Exhibits 273 to 277 of Revilla for lack of sponsorship. Revilla
made a tender of excluded exhibits and rested his case. Cambe and Napoles also rested
their case relative to their application for bail.

In a Resolution dated 1 December 2014,[18] the Sandiganbayan denied the separate

applications for bail filed by Revilla, Cambe, and Napoles. The Sandiganbayan held that
the prosecution duly established with strong evidence that Revilla, Cambe, and Napoles,
in conspiracy with one another, committed the crime of plunder defined and penalized
under RA 7080; thus, they are not entitled to the constitutional right to bail.

In a Resolution dated 26 March 2015,[19] the Sandiganbayan denied for lack of merit: (a)
Napoles' Motion for Reconsideration dated 17 December 2014; (b) Revilla's Omnibus
Motion: (1) for Reconsideration, and (2) To Adduce Additional Evidence dated 17
December 2014; and (c) Cambe's: (1) Motion for Reconsideration dated 15 December
2014, and (2) Motion to Adduce Additional Evidence and Request for Subpoena
embodied in his Reply dated 28 January 2015.

Thus, Revilla, Cambe, and Napoles filed their separate petitions for certiorari assailing
the Resolutions of the Sandiganbayan before this Court. The petition filed by Revilla is
docketed as G.R. No. 218232, the petition filed by Cambe is docketed as G.R. No.
218235, and the petition filed by Napoles is docketed as G.R. No. 218266.

On 21 December 2016, Revilla filed a Motion to Withdraw [20] the Petition for Certiorari
he filed before this Court alleging that "[c]onsidering, however, that the presentation of
prosecution evidence in the Plunder Case below will already commence on 12 January
2017, and that trial will be conducted every Thursday thereafter, petitioner will avail of
the remedies available to him in said proceedings once the insufficiency of the evidence
against him is established."[21]

G.R. No. 218903

Meanwhile, on 14 July 2014, the Office of the Ombudsman, through the Office of the
Special Prosecutor, filed a Motion to Transfer the Place of Detention of
Accused[22] Revilla, Cambe, and Napoles to the Bureau of Jail Management and Penology
(BJMP) facility in Camp Bagong Diwa or other similar facilities of the BJMP. The motion
states that the PNP Custodial Center is not a detention facility within the supervision of
BJMP under RA 6975 and their continued detention in a non-BJMP facility affords them
special treatment. In a Manifestation dated 4 August 2014, the prosecution alleged that
the Sandiganbayan ordered the detention of Napoles in the BJMP facility in Camp
Bagong Diwa; thus, as for Napoles, the motion of the prosecution became moot.

In his Opposition[23] dated 26 July 2014, Revilla alleged that his detention in the PNP
Custodial Center is in accord with the Rules and upon a valid resolution of the
Sandiganbayan. On 6 August 2014, Cambe also filed his Opposition[24] to the Motion to
Transfer the place of his detention.

In a Resolution[25] dated 4 September 2014, the Sandiganbayan denied the motion for

failure to advance justifiable grounds for Revilla and Cambe's transfer. The
Sandiganbayan held that detention in facilities other than a jail is sanctioned in our
jurisdiction and there is no law mandating that detention prisoners shall only be
detained in a jail supervised by the BJMP. The Sandiganbayan also found that it was not
shown that Revilla and Cambe were granted benefits above the standards set for other
detention prisoners.

The prosecution moved for reconsideration of the Sandiganbayan Resolution, while

Revilla and Cambe filed their separate Opposition to the motion for reconsideration.

In a Manifestation (Re: Unauthorized Movement of Accused Revilla on 14 February

2015) with Motion (For the Issuance of an Order Directing the Concerned PNP Officials
to Explain)[26] dated 27 February 2015, the prosecution alleged that Revilla was allowed
to attend the birthday celebration of Juan Ponce Enrile in the PNP General Hospital
under the guise of a medical emergency on 14 February 2015, bolstering its argument
that Revilla's detention in the PNP Custodial Center is improper.

In his Comment[27] to the Manifestation, PDDG Leonardo A. Espina alleged that he

directed the CIDG to investigate the incident, and he approved the recommendations of
the CIDG to file an administrative case for Grave Misconduct and violation of PNPHSS
2012 Manual of Operations, and criminal case against PSUPT Eulogio Lovello R. Fabro
(Fabro), PSINSP Celina D. Tapaoan (Tapaoan), and PO2 Jaydie Pelagio upon finding that
Fabro and Tapaoan connived to facilitate the visit of Revilla to Enrile and tried to cover it
up by requesting the attending physician PCINSP Duds Raymond Santos to change his
statement.

In a Resolution[28] dated 20 May 2015, the Sandiganbayan denied the motion for

reconsideration of the prosecution for lack of merit. The Sandiganbayan did not
consider as sufficient reason the reported unauthorized visit of Revilla to the hospital
room of Enrile to justify his transfer to Camp Bagong Diwa, since the concerned PNP
officials have already been admonished for failure to comply with the Sandiganbayan's
Order.

Thus, the Office of the Ombudsman, through the Office of the Special Prosecutor, filed a
petition for certiorari before us assailing the Sandiganbayan Resolutions dated 4
September 2014 and 20 May 2015. This petition is docketed as G.R. No. 218903.

G.R. No. 219162

On 27 October 2014, the Office of the Ombudsman, through the Office of the Special
Prosecutor, filed an Ex Parte Motion for Issuance of Writ of Preliminary
Attachment/Gamishment[29] against the monies and properties of Revilla to serve as
security for the satisfaction of the amount of P224,512,500.00 alleged as ill-gotten
wealth, in the event that a judgment is rendered against him for plunder. The motion
states that there is an imminent need for the issuance of the ex parte writ to prevent
the disappearance of Revilla's monies and properties found to be prima facie unlawfully
acquired, considering that the AMLC reported that many investment and bank accounts
of Revilla were "tenninated immediately before and after the PDAF scandal circulated in
[the] media,"[30] and Revilla himself publicly confinned that he closed several bank
accounts when the PDAF scam was exposed. The details of the monies and properties
sought to be attached were attached as Annex "B-Motion" in the prosecution's motion.

On 14 November 2014, Revilla filed an Opposition[31] to the prosecution's motion,

arguing that the factual basis for the issuance of the writ is yet to be proven, and that
the issuance of the writ would unduly preempt the proceedings in his bail application.

On 28 January 2015, the prosecution filed an Urgent Motion to Resolve Ex Parte Motion

for Issuance of Writ of Preliminary Attachment/Garnishment, [32] alleging that the
safeguarding of Revilla's properties has become even more necessary after the
Sandiganbayan denied Revilla's bail application and ruled that there is strong evidence
of his guilt.
In a Resolution[33] dated 5 February 2015, the Sandiganbayan granted the prosecution's
motion upon finding of its sufficiency both in form and substance. The Sandiganbayan
held that the issuance of a writ of preliminary attachment is properly anchored on
Sections I and 2 of Rule 57, and Sections 1 and 2 (b) and (c) of Rule 127 of the Rules of
Court. Thus, the Sandiganbayan issued a Writ of Attachment directed to the Acting
Chief, Sheriff and Security Services of the Sandiganbayan. On 10 July 2015, the
Sandiganbayan granted the prosecution's amendatory motion and issued an Alias Writ
of Preliminary Attachment, which included the properties under the known aliases or
other names of Revilla and his spouse, Lani Mercado.[34]

Revilla filed a motion for reconsideration, which the Sandiganbayan denied in a

Resolution[35] dated 28 May 2015. The Sandiganbayan held that the writ of preliminary
attachment is not the penalty of forfeiture envisioned under Section 2 of RA 7080,
contrary to Revilla's argument. The Sandiganbayan further elucidated that the issuance
of the writ is an ancillary remedy which can be availed of during the pendency of the
criminal case of plunder, and it is not necessary to await the final resolution of the bail
petition before it can be issued.

Thus, Revilla filed a petition for certiorari before us assailing the Sandiganbayan
Resolutions dated 5 February 2015 and 28 May 2015. This petition is docketed as G.R.
No. 219162.

In a Resolution[36] dated 4 August 2015, the Court En Banc resolved to consolidate G.R.

No. 219162 (Ramon "Bong" Revilla, Jr. v. Sandiganbayan [First Division]) and People of
the Philippines); G.R. No. 218232 (Ramon "Bong" Revilla, Jr. v. Sandiganbayan [First
Division] and People of the Philippines); G.R. No. 218235 (Richard A. Cambe v.
Sandiganbayan [First Division], People of the Philippines, and Office of the Ombudsman);
G.R. No. 218266 (Janet Lim Napoles v. Sandiganbayan [First Division], Hon. Conchita
Carpio Morales, in her capacity as Ombudsman, and People of the Philippines); and G.R.
No. 218903 (People of the Philippines v. Sandiganbayan [First Division], Ramon "Bong"
Bautista Revilla, Jr. and Richard A. Cambe).

In a Resolution[37] dated 21 February 2017, the Court En Banc resolved to note the

compliance dated 10 February 2017 filed by the counsel of Revilla informing the Court
that Revilla's Motion to Withdraw dated 14 December 2016 pertains only to the petition
in G.R. No. 218232.
 The Issues

In G.R. No. 218232, Revilla raises the following issue for resolution:

The Sandiganbayan committed grave abuse of discretion amounting to lack or
excess of jurisdiction in denying petitioner's application for admission to bail despite the
fact that the evidence on record do not show a clear and strong evidence of his guilt
[for] the crime of plunder.[38]
In G.R. No. 218235, Cambe argues that the Sandiganbayan committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
resolutions:
A. The denial of petitioner's application for bail was based on Criminal Procedure
1900 (General Order No. 58), which requires a much lower quantum of proof to deny
bail (i.e., proof of guilt is evident or presumption of guilt is strong), and not on Section
13, Article III of the 1987 Philippine Constitution, which requires proof that "evidence of
guilt is strong."

B. The denial of petitioner's motion for reconsideration was based on the concept of
"totality of evidence" which is applicable in Writ of Arnparo cases only.

C. Even assuming that "proof evident," "presumption great," or proof that "the
presumption of guilt is strong" are the tests to determine whether petitioner may be
granted or denied bail, the assailed resolutions were based on mere presumptions and
inferences.[39]
In G.R. No. 218266, Napoles alleged that the Sandiganbayan committed grave
abuse of discretion in ruling:
A. that the prosecution was able to prove with strong evidence that [Revilla] and
[Cambe] conspired with [Napoles], in amassing, accumulating, and acquiring ill-gotten
wealth. Thus, their petition for bail should be denied.

B. that the hard disk, disbursement ledger and the summary of rebates are reliable and
with integrity.

C. [that] the testimonies of the witnesses and the documents they [submitted are
credible].

D. [that] x x x that the evidence of the prosecution prove[s] plunder. [40]

 In G.R. No. 218903, the Office of the Ombudsman, through the Office of the
Special Prosecutor, alleged that the Sandiganbayan committed grave abuse of discretion
amounting to lack and/or excess of jurisdiction:
A. when it substituted its own judgment and refused to apply the clear mandate
of [RA 6975].

B. when it denied the transfer of private respondents to a BJMP-operated facility

despite the absence of cogent reasons to justify their detention in a facility other than
that prescribed by law.

C. when it refused to recognize that the continued detention of private respondents at

Camp Crame affords them special treatment and subjects them to different rules and
procedures.[41]
In G.R. No. 219162, Revilla alleged that the Sandiganbayan committed grave
abuse of discretion amounting to lack or excess of jurisdiction in granting the State's Ex-
Parte Motion for the issuance of a writ of preliminary attachment considering that:
A. the issuance of the assailed writ is erroneous and premature. The plunder law
does not allow the issuance of a writ of preliminary attachment, as it amounts to a
prejudgment and violates petitioner's constitutional rights to presumption of innocence
and due process; and

B. there is neither legal nor factual basis for the issuance of the writ of preliminary
attachment or garnishment.[42]
The Ruling of the Court

G.R. Nos.  218232, 218235, and 218266

At the outset, we note that Revilla withdrew his petition before the Court assailing the
Resolution of the Sandiganbayan denying him bail. In withdrawing his petition, he stated
"[he] will avail of the remedies available to him in [the plunder case before the
Sandiganbayan] once the insufficiency of the evidence against him is
established."[43] Accordingly, we no longer find it necessary to rule upon the issues raised
by Revilla in his petition in G.R. No. 218232.

Now, we proceed to determine whether or not the Sandiganbayan committed grave

abuse of discretion amounting to lack or excess of jurisdiction in denying bail to Cambe
and Napoles, who are charged with the crime of plunder, after finding strong evidence
of their guilt.

Judicial discretion, by its very nature, involves the exercise of the judge's individual
opinion and the law has wisely provided that its exercise be guided by well-known rules
which, while allowing the judge rational latitude for the operation of his own individual
views, prevent them from getting out of control.[44] We have held that discretion is
guided by: first, the applicable provisions of the Constitution and the statutes; second,
by the rules which this Court may promulgate; and third, by those principles of equity
and justice that are deemed to be part of the laws of the land. [45] The discretion of the
court, once exercised, cannot be reviewed by certiorari nor controlled by mandamus
save in instances where such discretion has been so exercised in an arbitrary or
capricious manner.[46]

Section 13, Article III of the 1987 Constitution provides that:

All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required. (Emphasis supplied)
Rule 114 of the Rules of Court emphasizes that offenses punishable by
death, reclusion perpetua or life imprisonment are non-bailable when the evidence of
guilt is strong:
Sec. 7. Capital offense or an offinse punishable by reclusion perpetua or life
imprisonment, not bailable. - No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution.
(Emphasis supplied)
The grant or denial of bail in an offense punishable by reclusion perpetua, such as
plunder, hinges on the issue of whether or not the evidence of guilt of the accused is
strong. This requires the conduct of bail hearings where the prosecution has the burden
of showing that the evidence of guilt is strong, [47] subject to the right of the defense to
cross-examine witnesses and introduce evidence in its own rebuttal. [48] The court is to
conduct only a summary hearing, or such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and consistent with the purpose of the
hearing which is merely to determine the weight of evidence for purposes of bail.[49]

The order granting or refusing bail which shall thereafter be issued must contain a
summary of the evidence for the prosecution. [50] The summary of the evidence shows
that the evidence presented during the prior hearing is formally recognized as having
been presented and most importantly, considered. [51] The summary of the evidence is
the basis for the judge's exercising his judicial discretion. [52] Only after weighing the
pieces of evidence as contained in the summary will the judge formulate his own
conclusion as to whether the evidence of guilt against the accused is strong based on his
discretion.[53] Thus, judicial discretion is not unbridled but must be supported by a
finding of the facts relied upon to form an opinion on the issue before the court. [54] It
must be exercised regularly, legally and within the confines of procedural due process,
that is, after evaluation of the evidence submitted by the prosecution. [55] Any order
issued in the absence thereof is not a product of sound judicial discretion but of whim,
caprice, and outright arbitrariness.[56]

In the present case, we find that the Sandiganbayan did not abuse its discretion
amounting to lack or excess of jurisdiction when it denied bail to Cambe and Napoles,
upon a finding of strong evidence that they committed the crime of plunder in
conspiracy with one another.

Plunder, defined and penalized under Section 2[57] of RA 7080, as amended, has the
following elements: (a) that the offender is a public officer, who acts by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons; (b) that he amasses, accumulates or acquires
ill-gotten wealth through a combination or series of overt or criminal acts described in
Section 1(d)[58] hereof; and (c) that the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least Fifty Million Pesos
(P50,000,000.00).

In finding that there is strong evidence that petitioners Revilla, Cambe, and Napoles
committed the crime of plunder, the Sandiganbayan held that:
THE FIRST ELEMENT. Accused Revilla and Cambe were public officers at the time
material to this case, accused Revilla being a member of the Senate of the Philippines,
and accused Cambe being Revilla's Chief of Staff/Political Officer/Director III as
appearing on the face of the documents on record. Accused Napoles is a private
individual charged in conspiracy with accused Revilla and Cambe. As provided in Section
2 of RA 7080, "[a]ny person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense."
THE SECOND ELEMENT. x x x.

xxxx

The separate and individual acts of accused Revilla, Cambe and Napoles convincingly
appear to have facilitated the amassing, accumulation, and acquisition of ill-gotten
wealth by accused Revilla. It is immaterial whether or not the prosecution has presented
evidence that accused Cambe and Napoles by themselves have likewise amassed,
accumulated, or acquired ill-gotten wealth in the amount of at least P50 Million each. It
is sufficient that the prosecution has established that accused Revilla and accused
Cambe have conspired with one another, and with accused Napoles in the accumulation
or acquisition of ill-gotten wealth of at least P50 million.

The Court is persuaded that the prosecution has presented compelling evidence that
accused Revilla amassed, accumulated or acquired ill-gotten wealth by repeatedly
receiving from accused Napoles or her representatives or agents, money, through
accused Cambe, and in those several occasions, accused Revilla and/or Cambe made use
of his or their official position, authority, connections, and influence. This was
established by the testimonies of the witnesses and the documents they testified to
which, at this stage of the proceedings, [have] remained unrebutted, and thus, given
full faith and credence by the Court.

From 2006 to 2009, accused Revilla was earmarked PDAF from the national budget. He
had no physical and direct possession of the fund. However, as the fund was allocated
to his office, he alone could trigger its release, after accomplishment of the necessary
documentary requirements. All he had to do, and which he actually did, was to request
its release from then President Gloria Macapagal-Arroyo (PGMA) or from the DBM
accompanied by a list of projects and endorsement naming a certain implementing
agency on the DBM's menu as project implementor. Finding everything to be in order,
the DBM processed accused Revilla's request, approved it, and eventually released the
SARO. Accused Revilla was informed of this release. After the SARO, the DBM issued the
NCA to cover the cash requirements of the IA authorized under the SARO. The DBM
issued Notice of Cash Allocation Issued (NCAI) to the Bureau of Treasury. In tranches,
the IA issued checks to the NGOs. The NGOs were paid in full of the project cost upon
submission of liquidation reports with supporting documents, such as delivery receipts,
purchase orders and list of beneficiaries, with corresponding signatures.
xxxx

It is well to note that accused Revilla's endorsement consisted of two phases. The first
phase consisted of letters addressed to PGMA or the DBM requesting for the release of
the PDAF, with attached list of priority projects. Itemized in the list were the location,
name and amount of the project as well as the IA he desired to implement the project.
The second phase consisted of letters to the IAs subsequent to the issuance of the
SARO, this time, endorsing Napoles' NGOs to the IAs as the latter's project partners.

The endorsement letters and other documents submitted to the IAs show that accused
Revilla's participation did not just stop at initiating the release of his PDAF, but extended
to the implementation stage of his identified projects. He sent communications to the
IAs appointing and authorizing accused Cambe to monitor, follow up, or assist in the
implementation of the projects, and "to sign in his behalf all other documents needed to
smooth the process." Accused Cambe, for accused Revilla, conformed to the project
activities and project profiles prepared by the NGOs. He likewise signed on the tripartite
MOAs with the representatives of the IA and the NGO concerned. Also, accused Cambe,
by himself or for accused Revilla, signed liquidation documents such as
accomplishment/terminal reports, reports of disbursement (fund utilization), inspection
and acceptance reports.

xxxx

Accused Revilla could not have possibly drawn money from his PDAF allocation directly
to himself. He had to do it through channels or conduits to camouflage the flow with a
semblance of legitimacy. Here lies the indispensable participation of accused Napoles.
Like accused Revilla, accused Napoles stayed at the background, using other people as
her tentacles to fulfill her part of the conspiracy. Although accused Napoles' signature
does not appear in any of these documents, evidence abounds to support that she was
the brains behind the vital link of the conspiracy. Luy, Suñas, Sula and Baltazar, who
once worked for accused Napoles, consistently declared that they moved and acted
upon the instruction of Napoles, from the creation of fake NGOs to the diversion of the
proceeds of the PDAF. Accused Napoles engineered the creation of the NGOs through
which the proceeds of accused Revilla's PDAF were funneled.

Evidence discloses that the NGOs were illicitly established for some dishonest purpose.
Their presidents and incorporators either have working or personal relations to accused
Napoles, or unknown to her, or fictitious. The addresses of the NGOs were either the
location of her property or that of her employees whom she made presidents, or
otherwise inexistent. The lists of beneficiaries were bogus, and this was confirmed by
the COA during its own investigation where it was found that either there were no
projects implemented or there were no such names of beneficiaries that existed.

Accused Napoles' connection to and control of the NGOs are made evident by the
bank transactions of the NGOs. Records of bank transactions of these NGOs reveal, as
testified to by witness Santos from the AMLC, that the accounts of these NGOs with
the Land bank and Metrobank were only temporary repository of funds and that the
withdrawal from the accounts of the NGOs had to be confirmed first with accused
Napoles nothwithstanding that the accounts were not under her name. It is well to
note that the bank accounts of these NGOs were opened by the named presidents
using JLN Corp. identification cards. These circumstances are consistent to the
testimonies of accused Luy, Sula, Suñas and Baltazar that as soon as the check of the
PDAF proceeds were encashed, accused Napoles directed them or any of her trusted
employees to withdraw the same. At this stage, the Court sees no basis to doubt the
strong evidence against accused Napoles.

Accused Revilla managed to remain incognito in reaping benefits from the illegal

scheme with the help and cooperation of accused Cambe. Concededly, there are no
direct proofs that accused Revilla received commissions/rebates out of the proceeds of
his PDAF routed to accused Napoles, but the circumstances persuasively attest that
accused Revilla on several occasions, received money from the illegitimate deals
involving his PDAF, through accused Cambe. Also, accused Cambe profited from the
same transactions so far computed at P13,935,000.00.

There are solid reasons to infer that accused Cambe acted on behalf of accused Revilla
and with the latter's imprimatur, and that accused Revilla effectively clothed accused
Cambe with full authority. Consider these: (1) accused Cambe worked for Revilla in
the Senate; (2) accused Revilla designated accused Cambe to follow up, supervise and
act on his behalf for the implementation of the projects, and to sign necessary
documents; (3) accused Cambe, representing accused Revilla or Revilla's office, signed
the MOAs and other documents used to support the issuance of the checks from the
IA to accused Napoles' NGOs to supposedly finance the projects out of accused
Revilla's PDAF. Accused Cambe likewise signed liquidation documents such as
accomplishment reports; (4) Luy, Suñas, and Sula forthrightly and positively identified
Cambe to have received from them or from accused Napoles the commissions/rebates
of accused Revilla; (5) the said witnesses likewise candidly testified that accused
Cambe also personally got his own commission either from them or from accused
Napoles; (6) Luy had recorded the commissions/rebates per his testimony, and as
shown by his disbursement ledgers and Summary of Rebates. These points may rest
heavily on the credibility of the witnesses. But, as discussed, the Court, in the
meantime, saw no cogent justification to invalidate their testimonies.

xxxx

THE THIRD ELEMENT. Of the Php224,512,500.00 alleged in the Information to have been
plundered by accused Revilla and/or Cambe, the prosecution has so far strongly proven
the amount of P103,000,000.00 broken down below. This is the total amount received
by accused Cambe for Revilla, to which Luy, Sula and Suñas have testified to their
personal knowledge. In other words, Luy, Sula or Suñas either directly handed the
money to accused Cambe, or they saw accused Napoles, or any one of them, give the
money to accused Cambe. Thus:
Date Amount
April 6, 2006 Php 5,000,000.00
June 6, 2006 5,000,000.00
March 27, 2007 7,500,000.00
April 12, 2007 9,500,000.00
April 19, 2007 3,000,000.00
August 10, 2007 3,000,000.00
2008 10,000,000.00
5,000,000.00
October 6, 2009 9,000,000.00
October 6, 2009 9,000,000.00
October 6, 2009 2,000.000.00
October 22, 2009 12,000,000.00
October 22, 2009 8,000,000.00
March 2010 15,000,000.00
Total Php103,000,000.00[59]
(Emphasis supplied)
Thus, the Sandiganbayan exercised its judicial discretion within the bounds of the
Constitution, law, rules, and jurisprudence after appreciating and evaluating the
evidence submitted by the parties.
During the bail hearings, both parties were afforded opportunities to offer their
evidence. The prosecution presented nine witnesses and documentary evidence to
prove the strong evidence of guilt of the accused. The defense likewise introduced
evidence in its own rebuttal and cross-examined the witnesses presented by the
prosecution. Only after both parties rested their case that the Sandiganbayan issued its
Resolution, which contains the summary of the prosecution's evidence. The summary of
the prosecution's evidence shows the basis for the Sandiganbayan's discretion to deny
bail to Cambe and Napoles.

In finding strong evidence of guilt against Cambe, the Sandiganbayan considered the
PDAF documents and the whistleblowers' testimonies in finding that Cambe received,
for Revilla, the total amount of P103,000,000.00, in return for Revilla's endorsement of
the NGOs of Napoles as the recipients of Revilla's PDAF. It gave weight to Luy's summary
of rebates and disbursement ledgers containing Cambe's receipt of money, which Luy
obtained from his hard drive. The Sandiganbayan likewise admitted Narciso as expert
witness, who attested to the integrity of Luy's hard drive and the files in it.

In finding strong evidence of guilt against Napoles, the Sandiganbayan considered the
AMLC Report, as attested by witness Santos, stating that Napoles controlled the NGOs,
which were the recipients of Revilla's PDAF. The Sandiganbayan found that the
circumstances stated in the AMLC Report, particularly that the bank accounts of these
NGOs were opened by the named presidents using JLN Corp. IDs, these accounts are
temporary repository of funds, and the withdrawal from these accounts had to be
confirmed first with Napoles, are consistent with the whistleblowers' testimonies that
they were named presidents of Napoles' NGOs and they withdrew large amounts of
cash from the NGOs' bank accounts upon instruction of Napoles. The Sandiganbayan
also took note of the COA report, as confirmed by the testimony of Garcia, that Revilla's
PDAF projects failed to comply with the law, Napoles' NGOs were fake, no projects were
implemented and the suppliers selected to supply the NGOs were questionable.

Accordingly, there is no basis for the allegation of Cambe that the Sandiganbayan
Resolutions were based on mere presumptions and inferences. On the other hand, the
Sandiganbayan considered the entire record of evidence in finding strong evidence of
guilt.

For purposes of bail, we held in People v. Cabral[60] that: "[b]y judicial discretion, the law
mandates the determination of whether proof is evident or the presumption of guilt is
strong. 'Proof evident' or 'Evident proof' in this connection has been held to
mean clear, strong evidence which leads a well-guarded dispassionate judgment to
the conclusion that the offense has been committed as charged, that accused is the
guilty agent, and that he will probably be punished capitally if the law is
administered. 'Presumption great' exists when the circumstances testified to are such
that the inference of guilt naturally to be drawn therefrom is strong, clear, and
convincing to an unbiased judgment and excludes all reasonable probability of any
other conclusion."[61] The weight of evidence necessary for bail purposes is not proof
beyond reasonable doubt, but strong evidence of guilt, or "proof evident," or
"presumption great." A finding of "proof evident" or "presumption great" is not
inconsistent with the determination of strong evidence of guilt, contrary to Cambe's
argument.

Cambe further alleged that the Sandiganbayan gravely abused its discretion in relying on
the concept of totality of evidence, which only applies in writ of amparo cases. To
support this argument, Cambe's previous counsel cited Razon, Jr. v. Tagitis.[62]

We specifically held in Razon that the: "unique situations that call for the issuance of the
writ [of amparo], as well as the considerations and measures necessary to address these
situations, may not at all be the same as the standard measures and procedures in
ordinary court actions and proceedings."[63] Thus, the case of Razon should not have
been applied in this case. On the other hand, as we held in People v. Cabral: "[e]ven
though there is a reasonable doubt as to the guilt of accused, if on an examination of
the entire record the presumption is great that accused is guilty of a capital offense, bail
should be refused."[64] Accordingly, an examination of the entire record - totality of
evidence - is necessary to determine whether there is strong evidence of guilt, for
purposes of granting or denying bail to the accused.

In their separate petitions before us, Cambe and Napoles attempt to individually refute
each evidence presented by the prosecution. In his petition, Cambe alleges that there
was even no evidence that: (1) he is a public officer; and (2) he and Napoles also
amassed, accumulated or acquired ill-gotten wealth of at least P50,000,000.00. Napoles,
on the other hand, argues that there was no direct evidence that Revilla amassed ill-
gotten wealth. In addition, Napoles argues that: (1) the whistleblowers' testimonies lack
credibility and are hearsay because of their admission that they never saw Revilla talk
with Napoles about their alleged agreement; (2) the AMLC report is multiple hearsay;
and (3) the hard disk, disbursement ledger, and summary of rebates are not reliable
because Narciso is not an expert witness, and the entries in the disbursement ledger are
hearsay. In short, Cambe and Napoles question the conclusions of the Sandiganbayan
insofar as its appreciation of the facts is concerned.

Generally, the factual findings of the Sandiganbayan are binding upon the Court.
[65]
 However, this general rule is subject to some exceptions, among them: (1) when the
conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2)
the inference made is manifestly mistaken; (3) there is a grave abuse of discretion; (4)
the judgment is based on misapprehension of facts; (5) said findings of facts are
conclusions without citation of specific evidence on which they are based; and (6) the
findings of fact of the Sandiganbayan are premised on the absence of evidence on
record.[66]

We will not set aside the factual findings of the Sandiganbayan, absent any showing that
the Sandiganbayan exercised its discretion out of whim, caprice, and outright
arbitrariness amounting to grave abuse of discretion.

In any event, Cambe is estopped from claiming that he is not a public officer. Cambe
himself admitted in his Application for Bail that "while accused Cambe is a public
officer, he did not act by himself or in connivance with members of his family x x
x."[67] Furthermore, such is a factual finding of the Sandiganbayan, which is binding
before us.

Also, there is no need to prove that Cambe and Napoles likewise amassed, accumulated
or acquired ill-gotten wealth of at least P50,000,000.00 or that Revilla talked with
Napoles about their alleged agreement. The charge against them is conspiracy to
commit plunder.

In Estrada v. Sandiganbayan,[68] we held that "the gravamen of the conspiracy charge,

therefore, is not that each accused agreed to receive protection money from illegal
gambling, that each misappropriated a portion of the tobacco excise tax, that each
accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive
commissions from such sale, nor that each unjustly enriched himself from commissions,
gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-
gotten wealth of and/or for [petitioner Estrada]."[69] Also, proof of the agreement need
not rest on direct evidence, as the agreement itself may be inferred from the conduct
of the parties disclosing a common understanding among them with respect to the
commission of the offense.[70] It is not necessary to show that two or more persons met
together and entered into an explicit agreement setting out the details of an unlawful
scheme or the details by which an illegal objective is to be carried out. [71] Thus, in Guy v.
People of the Philippines,[72] we held that conspiracy was properly appreciated by the
Sandiganbayan because even though there was no direct proof that petitioners agreed
to cause injury to the government and give unwarranted benefits to a certain
corporation, their individual acts when taken together as a whole showed that they
were acting in concert and cooperating to achieve the same unlawful objective. The
conspiracy to commit plunder need not even be proved beyond reasonable doubt, but
only for purposes of determining whether bail shall be granted.

Moreover, in giving credence to the testimonies of the prosecution witnesses, we held

that the trial court's the Sandiganbayan's assessment of the credibility of a witness is
entitled to great weight, sometimes even with finality. [73] This Court will not interfere
with that assessment, absent any indication that the lower court has overlooked some
material facts or gravely abused its discretion. [74] Minor and insignificant inconsistencies
in the testimony tend to bolster, rather than weaken, the credibility of witnesses, for
they show that the testimony is not contrived or rehearsed. [75] Moreover, the testimony
of a witness must be considered in its entirety and not merely in its truncated parts.
[76]
 Similarly, we held that "the credibility of the expert witness and the evaluation of his
testimony is left to the discretion of the trial court whose ruling thereupon is not
reviewable in the absence of an abuse of that discretion." [77]

As for the weight given by the Sandiganbayan to whistleblowers' testimonies, expert's

testimony, AMLC report, the hard disk, disbursement ledger and summary of rebates,
we emphasize that for purposes of bail, the court does not try the merits or enter into
any inquiry as to the weight that ought to be given to the evidence against the
accused, nor will it speculate on the outcome of the trial or on what further evidence
may be offered therein.[78] The course of inquiry may be left to the discretion of the
court which may confine itself to receiving such evidence as has reference to substantial
matters, avoiding unnecessary thoroughness in the examination and cross-examination.
[79]

Grave abuse of discretion implies a capricious and whimsical exercise of judgment

tantamount to lack or excess of jurisdiction. [80] The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility.
[81]

We find that the Sandiganbayan was far from abusive of its discretion. On the contrary,
its findings were based on the evidence extant in the records. In its appreciation and
evaluation of the evidence against Cambe and Napoles, the Sandiganbayan did not
commit grave abuse of discretion in finding that the prosecution established strong
evidence of their guilt.

G.R. No. 218903

We find that the Sandiganbayan did not commit grave abuse of discretion amounting to
lack and/or excess of jurisdiction when it denied the prosecution's motion to transfer
the detention of Revilla and Cambe from the PNP Custodial Center to a BJMP-operated
facility.

The Rules of Court provide that an arrest is the taking of a person into custody in order
that he may be bound to answer for the commission of an offense. [82] An arrest is made
by an actual restraint of a person to be arrested, or by his submission to the custody of
the person making the arrest.[83] Section 24 of RA 6975, or An Act Establishing The
Philippine National Police Under A Reorganized Department of the Interior and Local
Government, and for Other Purposes, provides that: "The Philippine National Police
(PNP) shall have the following powers and functions: x x x (e) Detain an arrested
person for a period not beyond what is prescribed by law, informing the person so
detained of all his rights under the Constitution; x x x." The Revised PNP Police
Operational Procedures Manual provides that: "any person arrested due to the
commission of a crime/s can be detained/admitted in the PNP Detention/Custodial
Center."[84] As defined in the Revised PNP Police Operational Procedures Manual, [85] a
detention/Custodial Center is an institution secured by the PNP Units concerned for the
purpose of providing short term custody of [a] detention prisoner thereby affording his
safety and preventing escape while awaiting the court's disposition of the case or his
transfer to the appropriate penal institution.

In the present case, both Revilla and Cambe voluntarily surrendered to the
Sandiganbayan upon the issuance of the warrants of arrest against them, albeit with
motion to elect the detention facilities in the PNP Custodial Center. Upon their
voluntary surrender, they are deemed arrested and taken into custody. The
Sandiganbayan thereafter allowed both Revilla and Cambe to be detained in the PNP
Custodial Center barracks. Under the Rules of Court, the court, such as the
Sandiganbayan in the present case, shall exercise supervision over all persons in custody
for the purpose of eliminating unnecessary detention.[86]

When by law jurisdiction is conferred on a court, all auxiliary writs, processes and other
means necessary to carry it into effect may be employed by such court; and if the
procedure to be followed in the exercise of such jurisdiction is not specifically pointed
out by law or by these rules, any suitable process or mode of proceeding may be
adopted which appears comfortable to the spirit of the said law or rules. [87] Accordingly,
the Sandiganbayan acted within its jurisdiction and did not abuse its discretion in
ordering the commitment of Revilla and Cambe in the PNP Custodial Center.

Clearly, Section 24 of RA 6975 vests authority in the PNP to detain arrested persons such
as Revilla and Cambe, and the Revised PNP Police Operational Procedures Manual
includes the PNP Detention/Custodial Center as an institution where any person
arrested due to the commission of a crime/s can be detained/admitted.

The prosecution, however, anchors its motion to transfer the detention of Revilla and
Cambe on Section 3, Rule 113 of the Rules of Court and Section 63 of RA 6975. Section
3, Rule 113 of the Rules of Court provides that: "It shall be the duty of the officer
executing the warrant to arrest the accused and to deliver him to the nearest police
station or jail without unnecessary delay." On the other hand, Section 63 of RA 6975
provides:
SECTION 63. Establishment of District, City or Municipal Jail. There shall be
established and maintained in every district, city and municipality a secured, clean,
adequately equipped and sanitary jail for the custody and safekeeping of city and
municipal prisoners, any fugitive from justice, or person detained awaiting investigation
or trial and/or transfer to the national penitentiary, and/or violent mentally ill person
who endangers himself or the safety of others, duly certified as such by the proper
medical or health officer, pending the transfer to a medical institution.

The municipal or city jail service shall preferably be headed by a graduate of a four (4)
year course in psychology, psychiatry, sociology, nursing, social work or criminology who
shall assist in the immediate rehabilitation of individuals or detention of prisoners. Great
care must be exercised so that the human rights of [these] prisoners are respected and
protected, and their spiritual and physical well-being are properly and promptly
attended to.
However, both Section 3 of Rule 113 and Section 63 of RA 6975 are inapplicable
in the present case. It must be noted that Revilla and Cambe voluntarily surrendered to
the Sandiganbayan, and there is no opportunity for the arresting officer to execute the
warrants of arrest against them. Moreover, the said rule merely refers to the duty of the
arresting officer to deliver the arrested person to the nearest police station or jail. The
rule did not state about the duty "to detain" the arrested person to the nearest police
station or jail. There is nothing in the rule referring to the place of detention of the
arrested person.

In the same manner, there is nothing in Section 63 of RA 6975 which expressly

mandates and limits the place of detention in BJMP-controlled facilities. On the other
hand, it merely provides that: "there shall be established and maintained in every
district, city and municipality a secured, clean, adequately equipped and sanitary jail x x
x." When the language of the law is clear and explicit, there is no room for
interpretation, only application.

Section 61 of the same law states that the BJMP shall exercise supervision and control
over all city and municipal jails, while the provincial jails shall be supervised and
controlled by the provincial government within its jurisdiction. [88] Evidently, a provincial
jail is a place of detention not within the supervision and control of the BJMP. From the
law itself, there are places of detention for the accused, which are not within the control
and supervision of the BJMP.

Thus, to argue, as the prosecution did, that Revilla and Cambe's detention in the PNP
Custodial Center afforded them special treatment because it is not a jail supervised by
the BJMP would be similar to saying that detention of an accused in a provincial jail
supervised by the provincial government would afford such accused special treatment.

Aside from its bare statements, the prosecution did not advance compelling reasons to
justify the transfer of detention of Revilla and Cambe. The prosecution likewise failed to
substantiate its allegation of special treatment towards Revilla. As the Sandiganbayan
properly held:
The prosecution failed to advance compelling and reasonable grounds to justify
the transfer of accused Revilla and Cambe from the PNP Custodial Center, Camp Crame,
to a BJMP controlled jail. Since their detention at the PNP Custodial Center on June 20,
2014, the conditions of their confinement have not been altered by circumstances that
would frustrate the very purpose of their detention. Both accused have submitted
themselves to the Court when required. No concrete incidents have been cited by the
prosecution to establish that their continued detention in Camp Crame is no longer
viable, and that the better part of discretion is to transfer them to a BJMP controlled jail.
The prosecution does not articulate what is in a BJMP facility that the PNP Custodial
Center lacks, or vice versa, which will make a difference in the administration of justice.

Before the Court is simply a general proposition that the accused should be confined in
a BJMP controlled detention facility based on some rules, which the Court have
previously discussed to be unacceptable, backed up by an unsubstantiated generic
declaration that the PNP Custodial Center affords them special treatment not extended
to all other detention prisoners under BJMP control. To the prosecution, this is a
violation of the constitutional right to equal protection of the other detention prisoners,
like Atty. Reyes, who is now detained in a BJMP facility.

But, the Court is not convinced. To agree with the prosecution on the matter of special
treatment is to accept a general notion that the public officers in a BJMP facility are
more circumspect in the handling of detention prisoners than in a non-BJMP facility, like
the PNP Custodial Center. Verily, the "special treatment," e.g., wedding anniversary
celebration of Senator Jinggoy Estrada claimed by the prosecution, does not go with the
place. It has even nothing to do with accused Revilla and Cambe. "Special treatment" is
a judgment call by the people concerned in the place. For no matter which detention
place will accused Revilla and Cambe be confined if the people controlling that place
would extend them privileges not usually given to other detention prisoners, there
would always be that dreaded "special treatment." Thus, special treatment can be
addressed by ensuring that the people around the accused in their present detention
facility will deter from giving them exceptional benefits, through a firm implementation
of policies and measures, and the imposition of sanctions for non-compliance. The
"special treatment" cannot be remedied by transferring the accused to another
detention facility. The transfer must be reasonably justified.

The Court solicitously agrees that it is the fact of detention and not the place of
detention that is important. x x x.[89]
In its Resolution dated 20 May 2015, the Sandiganbayan stated that it so took
into account, considering the circumstances of the accused, the security conditions of
the place, and its proximity to the court.[90] With these factors, the Sandiganbayan
viewed that the PNP Custodial Center would be able to secure the accused and ensure
their attendance at trial, at a reasonable cost to the government. Absent any showing of
grave abuse of discretion, the factual findings of the Sandiganbayan are binding upon
the Court. We affirm the order of the Sandiganbayan directing the PNP-CIDG "to keep
the accused in its custody at the aforesaid barracks (PNP Custodial Center Barracks) and
not allow the accused to be moved, removed, or relocated until further orders from the
court."[91]

G.R. No. 219162

We find that the Sandiganbayan did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in ordering the issuance of the writ of preliminary
attachment against Revilla's monies and properties.

Presidential Decree No. 1606, as amended by RA 10660, provides that the

Sandiganbayan has jurisdiction to jointly determine in the same proceeding the criminal
action and the corresponding civil action for the recovery of civil liability, considering
that the filing of the criminal action before the Sandiganbayan is deemed to necessarily
carry with it the filing of the civil action. [92] The same law provides that the Rules of Court
promulgated by the Supreme Court shall apply to all cases and proceedings filed with
the Sandiganbayan.[93] The Rules of Court state that the provisional remedies in civil
actions, insofar as they are applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action. [94]

The grounds for the issuance of the writ of preliminary attachment have been provided
in Rule 57 and Rule 127 of the Rules of Court. Rule 127 states that the provisional
remedy of attachment on the property of the accused may be availed of to serve as
security for the satisfaction of any judgment that may be recovered from the accused
when the criminal action is based on a claim for money or property embezzled or
fraudulently misapplied or converted to the use of the accused who is a public officer,
in the course of his employment as such, or when the accused has concealed, removed
or disposed of his property or is about to do so.[95] Similarly, Rule 57 provides that
attachment may issue: "x x x (b) in an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public officer x x x; (c) in an
action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant or an authorized
person; x x x."[96]

It is indispensable for the writ of preliminary attachment to issue that there exists
a prima facie factual foundation for the attachment of properties, and an adequate and
fair opportunity to contest it and endeavor to cause its negation or nullification.
[97]
 Considering the harsh and rigorous nature of a writ of preliminary attachment, the
court must ensure that all the requisites of the law have been complied with; otherwise,
the court which issues it acts in excess of its jurisdiction. [98]

Thus, for the ex-parte issuance of a writ of preliminary attachment to be valid, an

affidavit of merit and an applicant's bond must be filed with the court in which the
action is pending.[99] For the affidavit of merit, Section 3 of the same rule states that:
"[a]n order of attachment shall be granted only when it is made to appear by the
affidavit of the applicant or some other person who personally knows of the facts that a
sufficient cause of action exists, that the case is one of those mentioned in Section 1
hereof, that there is no sufficient security for the claim sought to be enforced by the
action, and that the amount due to applicant or the value of the property the
possession of which he is entitled to recover is as much as the sum for which the order
is granted above all legal counterclaims." The mere filing of an affidavit reciting the facts
required by Section 3, however, is not enough to compel the judge to grant the writ of
preliminary attachment.[100] Whether or not the affidavit sufficiently established facts
therein stated is a question to be determined by the court in the exercise of its
discretion.[101] The sufficiency or insufficiency of an affidavit depends upon the amount
of credit given it by the judge, and its acceptance or rejection, upon his sound
discretion.[102] On the requirement of a bond, when the State is the applicant, the filing
of the attachment bond is excused.[103]

We find that the Sandiganbayan acted within its jurisdiction since all the requisites for
the issuance of a writ of preliminary attachment have been complied with.

Revilla, while still a public officer, is charged with plunder, committed by amassing,
accumulating, and acquiring ill-gotten wealth, through a combination or series of overt
or criminal acts, as follows:
1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or

any other form of interest or participation including promise of future employment in
any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines. [104] (Emphasis
supplied)
Clearly, the crime of plunder is based on a claim for public funds or property
misappropriated, converted, misused, or malversed by the accused who is a public
officer, in the course of his employment as such. The filing of the criminal action for
plunder, which is within the jurisdiction of the Sandiganbayan, [105] is deemed to
necessarily carry with it the filing of the civil action. Accordingly, the writ of preliminary
attachment is an available provisional remedy in the criminal action for plunder.

In its Motion, the prosecution alleged that: "[Revilla] converted for his own use or
caused to be converted for the use by unauthorized persons the sum of
Php515,740,000.00 worth of public funds sourced from his PDAF through 'ghost'
projects."[106] In Cambe v. Office of the Ombudsman,[107] we agreed with the
Ombudsman's finding of probable cause against Revilla and held that for purposes of
arriving at a finding of probable cause, "only facts sufficient to support a prima
facie case against the [accused] are required, not absolute certainty." Thus, we held that
the prosecution's evidence established a prima facie case for plunder against Revilla:
Taking together all of the above-stated pieces of evidence, the COA and FIO
reports tend to prima facie establish that irregularities had indeed attended the
disbursement of Sen. Revilla's PDAF and that he had a hand in such anomalous
releases, being the head of Office which unquestionably exercised operational control
thereof. As the Ombudsman correctly observed, "[t]he PDAF was allocated to him by
virtue of his position as a Senator, and therefore he exercise[d] control in the selection
of his priority projects and programs. He indorsed [Napoles'] NGOs in consideration for
the remittance of kickbacks and commissions from Napoles. Compounded by the fact
that the PDAF-funded projects turned out to be 'ghost projects', and that the rest of the
PDAF allocation went into the pockets of Napoles and her cohorts, [there is probable
cause to show that] Revilla thus unjustly enriched himself at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines." Hence,
he should stand trial for violation of Section 3(e) of RA 3019. For the same reasons, it is
apparent that ill-gotten wealth in the amount of at least P50,000,000.00 (i.e.,
P224,512,500.00) were amassed, accumulated or acquired through a combination or
series of overt acts stated in Section 1 of the Plunder Law. Therefore, Sen. Revilla should
likewise stand trial for Plunder.[108] (Emphasis supplied)
Thus, contrary to Revilla's insinuations, there exists a prima facie factual
foundation for the attachment of his monies and properties.

Furthermore, in its Resolution dated 1 December 2014 denying bail to Revilla, the
Sandiganbayan held that the prosecution duly established with strong evidence that
Revilla, Cambe, and Napoles, in conspiracy with one another, committed the crime of
plunder. The finding of strong evidence for purposes of bail is a greater quantum of
proof required than prima facie factual foundation for the attachment of properties.
Thus, the Sandiganbayan properly exercised its discretion in issuing the writ of
preliminary attachment upon appreciating and evaluating the evidence against Revilla.

Moreover, the Affidavit of Merit attached to the Motion and executed by graft
investigators of Revilla's PDAF likewise established that (1) a sufficient cause of action
exists for the issuance of a writ of preliminary attachment; (2) the case is one of those
mentioned in Sections 57 and 127 of the Rules of Court, and (3) that Revilla has no
visible sufficient security in the event that judgment is rendered against him. The
sufficiency of the affidavit depends upon the amount of credit given by the
Sandiganbayan, and its acceptance, upon its sound discretion. We refuse to interfere in
its exercise of discretion, absent any showing that the Sandiganbayan gravely abused its
discretion.

Even assuming that plunder is not based on a claim for public funds or property
misappropriated, converted, misused or malversed by the public officer, the prosecution
nevertheless alleged that Revilla has concealed, removed, or disposed of his property, or
is about to do so, which is another ground for the issuance of the writ of preliminary
attachment. The AMLC report, attached to the Motion, states that many investment and
bank accounts of Revilla were "terminated immediately before and after the PDAF
scandal circulated in [the] media," and Revilla himself publicly confirmed that he closed
several bank accounts when the PDAF scam was exposed. Revilla failed to rebut these
allegations with any evidence.

Considering that the requirements for its issuance have been complied with, the
issuance of the writ of preliminary attachment by the Sandiganbayan is in order.

Contrary to Revilla's allegation, a writ of preliminary attachment may issue even without
a hearing. Section 2, Rule 57 of the Rules of Court states that: "[a]n order of attachment
may be issued either ex parte or upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or the Supreme Court, and must
require the sheriff of the court to attach so much of the property in the Philippines of
the party against whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order, which may be the
amount sufficient to satisfy the applicant's demand or the value of the property to be
attached as stated by the applicant, exclusive of costs. x x x."

In Davao Light & Power Co., Inc. v. Court of Appeals,[109] this Court ruled that "a hearing
on a motion or application for preliminary attachment is not generally necessary unless
otherwise directed by the trial court in its discretion." [110] In the same case, the Court
declared that "[n]othing in the Rules of Court makes notice and hearing indispensable
and mandatory requisites for the issuance of a writ of attachment." [111] Moreover, there
is an obvious need to avoid alerting suspected possessors of "ill-gotten" wealth and
thereby cause that disappearance or loss of property precisely sought to be prevented.
[112]
 In any case, Revilla was given an adequate and fair opportunity to contest its
issuance.

Also, contrary to Revilla's allegation, there is no need for a final judgment of ill-gotten
wealth, and a preliminary attachment is entirely different from the penalty of forfeiture
imposed upon the final judgment of conviction under Section 2 of RA 7080. By its
nature, a preliminary attachment is an ancillary remedy applied for not for its own sake
but to enable the attaching party to realize upon the relief sought and expected to be
granted in the main or principal action; it is a measure auxiliary or incidental to the main
action.[113] As such, it is available during the pendency of the action which may be
resorted to by a litigant to preserve and protect certain rights and interests during the
interim, awaiting the ultimate effects of a final judgment in the case.[114] The remedy of
attachment is provisional and temporary, designed for particular exigencies, attended
by no character of permanency or finality, and always subject to the control of the
issuing court.[115]

On the other hand, Section 2 of RA 7080 requires that upon conviction, the court shall
declare any and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stock derived from the deposit or investment
thereof forfeited in favor of the State. The State may avail of the provisional remedy of
attachment to secure the preservation of these unexplained wealth and income, in the
event that a judgment of conviction and forfeiture is rendered. The filing of an
application for the issuance of a writ of preliminary attachment is a necessary incident in
forfeiture cases.[116] It is needed to protect the interest of the government and to
prevent the removal, concealment, and disposition of properties in the hands of
unscrupulous public officers.[117] Otherwise, even if the government subsequently wins
the case, it will be left holding an empty bag. [118]

This Decision does not touch upon the guilt or innocence of any of the petitioners.

WHEREFORE, we DISMISS the petitions for lack of merit and AFFIRM the assailed

Resolutions of the Sandiganbayan.

SO ORDERED.

THIRD DIVISION
[ G.R. Nos. 201398-99, October 03, 2018 ]
COMMISSIONER OF INTERNAL REVENUE, PETITIONER, V. AVON
PRODUCTS MANUFACTURING, INC., RESPONDENT.

[G.R. Nos. 201418-19, October 3, 2018]

AVON PRODUCTS MANUFACTURING, INC., PETITIONER, V. THE

 COMMISSIONER OF THE INTERNAL REVENUE, RESPONDENT.

DECISION

LEONEN, J.:

Tax assessments issued in violation of the due process rights of a taxpayer are
null and void. While the government has an interest in the swift collection of taxes, the
Bureau of Internal Revenue and its officers and agents cannot be overreaching in their
efforts, but must perform their duties in accordance with law, with their own rules of
procedure, and always with regard to the basic tenets of due process.

The 1997 National Internal Revenue Code, also known as the Tax Code, and revenue
regulations allow a taxpayer to file a reply or otherwise to submit comments or arguments
with supporting documents at each stage in the assessment process. Due process requires
the Bureau of Internal Revenue to consider the defenses and evidence submitted by the
taxpayer and to render a decision based on these submissions. Failure to adhere to these
requirements constitutes a denial of due process and taints the administrative proceedings
with invalidity.

These consolidated cases assail the Court of Tax Appeals En Banc November 9, 2011
Decision[1] and April 10, 2012 Resolution[2] in CTA EB Case Nos. 661 and 663. The
assailed Decision denied the respective Petitions for Review by the Commissioner of
Internal Revenue (Commissioner)[3] and of Avon Products Manufacturing, Inc. (Avon),
[4]
 and affirmed the Court of Tax Appeals Special First Division May 13, 2010 Decision.
[5]
 The assailed Resolution denied the Commissioner's Motion for Reconsideration[6] and
Avon's Motion for Partial Reconsideration.[7]

Avon filed its Value Added Tax (VAT) Returns and Monthly Remittance Returns of
Income Tax Withheld for the taxable year 1999 on the following dates:

Return Date Filed

3rd Quarter VAT Return October 25, 1999
4th Quarter VAT Return January 25, 2000

Monthly Remittance
Return of Income Expanded Compensation
Taxes Withheld
January February 25, 1999 February 25, 1999
 February March 25, 1999 March 25, 1999
March April 26, 1999 April 26, 1999
April May 25, 1999 May 25, 1999
May June 25, 1999 June 25, 1999
June July 26, 1999 July 26, 1999
July August 25, 1999 August 25, 1999
August September 27, 1999 September 27, 1999
September October 25, 1999 October 25, 1999
October November 25, 1999 November 25, 1999
November December 27, 1999 December 27, 1999
December January 25, 2000 January 25, 2000[8]

Avon signed two (2) Waivers of the Defense of Prescription dated October 14, 2002 and
December 27, 2002,[9] which expired on January 14, 2003 and April 14, 2003,
respectively.[10]

On July 14, 2004, Avon was served a Collection Letter[11] dated July 9, 2004. It was
required to pay P80,246,459.15[12] broken down as follows:

KIND Y COMPR TOTAL

BASIC TAX INTEREST
OF TAX EAR OMISE AMOUNT
Income 1 22,012,9 13,207,7 25,00 35,245,77
Tax 999 84.19 90.51 0.00 4.70
Excise 1 913,514.8 658,675. 73,20 1,645,390.
Tax 999 7 57 0.00 44
1 20,286,0 13,254,6 50,00 33,590,71
VAT
999 33.82 77.47 0.00 1.29
Withho 1 4,702,11 3,040,22 45,00 7,787,345.
lding Tax 999 6.38 9.28 0.00 66
on
Compensation
Expand 1 1,187,61 764,626. 25,00 1,977,237.
ed 999 0.88 18 0.00 06
Withholding
Tax
P49,102, P30,925, P218, P80,246,4
TOTAL
260.14 999.01 200.00 59.15[13]

These deficiency assessments were the same deficiency taxes covered by the Preliminary
Assessment Notice[14] dated November 29, 2002, received by Avon on December 23,
2002.[15]
On February 14, 2003, Avon filed a letter dated February 13, 2003 protesting against the
Preliminary Assessment Notice.[16]

Without ruling on Avon's protest, the Commissioner prepared the Formal Letter of
Demand[17] and Final Assessment Notices,[18] all dated February 28, 2003, received by
Avon on April 11, 2003. Except for the amount of interest, the Final Assessment Notices
were the same as the Preliminary Assessment Notice.[19]

In a letter[20] dated and filed on May 9, 2003, Avon protested the Final Assessment
Notices. Avon resubmitted its protest to the Preliminary Assessment Notice and adopted
the same as its protest to the Final Assessment Notices.[21]

A conference was allegedly held on June 26, 2003 where Avon informed the revenue
officers that all the documents necessary to support its defenses had already been
submitted. Another meeting was held on August 4, 2003, where it showed the original
General Ledger Book as previously directed by the revenue officers. During these
meetings, the revenue officers allegedly expressed that they would cancel the assessments
resulting from the alleged discrepancy in sales if Avon would pay part of the
assessments.[22]

Thus, on January 30, 2004, Avon paid the following portions of the Final Assessment
Notices:

a) Disallowed taxes and licenses/Fringe Benefit Tax adjustment P153,559.37; and

b) Withholding Tax on Compensation - Late Remittance - P32,829.28[23]

However, in a Memorandum dated May 27, 2004, the Bureau of Internal Revenue's
officers recommended the enforcement and collection of the assessments on the sole
justification that Avon failed to submit supporting documents within the 60-day period as
required under Section 228 of the Tax Code.[24]

The Large Taxpayers Collection and Enforcement Division thereafter served Avon with
the Collection Letter dated July 9, 2004.[25] Avon asserted that even the items already paid
on January 30, 2004 were still included in the deficiency tax assessments covered by this
Collection Letter.[26]

In a letter[27] to the Deputy Commissioner for Large Taxpayers Service dated and filed on
July 27, 2004, Avon requested the reconsideration and withdrawal of the Collection
Letter. It argued that it was devoid of legal and factual basis, and was premature as the
Commissioner of Internal Revenue had not yet acted on its protest against the Final
Assessment Notices.[28]
The Commissioner did not act on Avon's request for reconsideration. Thus, Avon was
constrained to treat the Collection Letter as denial of its protest.[29]

On August 13, 2004, Avon filed a Petition for Review before the Court of Tax Appeals.
[30]
 On August 24, 2004, it filed an Urgent Motion for Suspension of Collection of Tax.[31]

On May 13, 2010, the Court of Tax Appeals Special First Division rendered its Decision,
[32]
 partially granting Avon's Petition for Review insofar as it ordered the cancellation of
the Final Demand and Final Assessment Notices for deficiency excise tax, VAT,
withholding tax on compensation, and expanded withholding tax. However, it ordered
Avon to pay deficiency income tax in the amount of P357,345.88 including 20%
deficiency interest on the total amount due pursuant to Section 249, paragraphs (b) and
(c)(3) of the Tax Code. The Court of Tax Appeals Special First Division also made the
following pronouncements:[33]

a) There was no deprivation of due process in the issuance by the CIR of the assessment
for deficiency income tax, deficiency excise tax, deficiency VAT, deficiency final
withholding tax on compensation and deficiency expanded withholding tax against
AVON for the latter was afforded an opportunity to explain and present its evidence;

b) The Waivers of the Statute of Limitations executed by AVON are invalid and
ineffective as the CIR failed to provide [AVON] a copy of the accepted Waivers, as
required under Revenue Memorandum Order No. 20-90. Hence, the assessment of
AVON's deficiency VAT, deficiency expanded withholding tax and deficiency
withholding tax on compensation is considered to have prescribed;

c) AVON's failure to submit the relevant documents in support of its protest did not make
the assessment final and executory;

d) As to assessment on AVON's deficiency Income Tax,

(1) there was no undeclared sales/income in the amount of P62,911,619.58 per ITR for
the taxable year 1999;
 
(2) AVON's liability for disallowed taxes and licenses and December 1998 Fringe Benefit
Tax payment adjustment in the amount of P152,632.10 and P927.27, respectively, or a total
of P153,559.37 is extinguished in view of the payment made;
 
(3) The discrepancy between Ending Inventories reflected in Balance Sheet and Cost of
Sales represents variance/adjustments on standard cost to actual cost allocated to ending
inventories and not under-declaration as alleged by CIR;
 
(4) AVON's claimed tax credits in the amount of P203,645.89 was disallowed as the
same was unsupported by withholding tax certificates as required under Section 2.58.3 (B) of
 Revenue Regulations No. 2-98. However, the amount of P140,505.28 was upheld as a proper
deduction from its 1999 income tax due; and

e) As to assessment on AVON's deficiency excise tax, the same is deemed cancelled and
withdrawn in view of its Application for Abatement over its deficiency excise tax
assessment for the year 1999 and its corresponding payment.[34]

The dispositive portion of the Court of Tax Appeals Special First Division May 13, 2010
Decision read:

WHEREFORE, the Petition for Review is hereby PARTIALLY GRANTED.

Accordingly, respondent is ORDERED TO CANCEL/WITHDRAW the Final Demand
and Final Assessment Notices: (1) Assessment No. LTAID-ET-99-00011 for deficiency
Excise Tax, (2) Assessment No. LTAID-II-VAT-99-00017 for deficiency Value Added
Tax, (3) Assessment No. LTAID-II-WTC-9900002 for deficiency Withholding Tax on
Compensation Under Withholding and Later Remittance, and (4) Assessment No.
LTAID-EWT-99-00010 for deficiency Expanded Withholding Tax.

However, petitioner is ORDERED TO PAY respondent the deficiency Income Tax under
Assessment No. LTAID-II-IT-99-00018 in the amount of P357,345.88 for taxable year
1999.

In addition, petitioner is liable to pay: i) a deficiency interest on the deficiency basic

income tax due of P100,761.01 at the rate of 20% per annum from January 31, 2004 until
fully paid pursuant to Section 249(B) of the 1997 NIRC and ii) a delinquency interest on
the total amount due (inclusive of the deficiency interest) at the rate of 20% per annum
from July 24, 2004 until fully paid pursuant to Section 249(C)(3) of the 1997 NIRC.

SO ORDERED.[35]

The parties' Motions for Partial Reconsideration were denied in the July 12, 2010
Resolution.[36] Both parties filed their respective Petitions for Review before the Court of
Tax Appeals En Banc.[37]

In its assailed November 9, 2011 Decision,[38] the Court of Tax Appeals En Banc denied
the respective Petitions of the Commissioner and Avon, and affirmed the Court of Tax
Appeals Special First Division May 13, 2010 Decision. It held that the Waivers of the
Defense of Prescription were defective, thereby rendering the assessment of Avon's
deficiency VAT, expanded withholding tax, and withholding tax on compensation to
have prescribed.[39] It further ruled that contrary to the Commissioner's argument, the
requirement under Revenue Memorandum Order No. 20-90 to furnish the taxpayer with
copies of the accepted waivers was not merely formal in nature, and non-compliance with
it rendered the Waivers of the Defense of Prescription invalid and ineffective. [40]
On the issue of jurisdiction, the Court of Tax Appeals En Banc held that under Section
228 of the Tax Code, the taxpayer has two (2) options in case of inaction of the
Commissioner on disputed assessments. The first option is to file a petition with the
Court of Tax Appeals within 30 days from the lapse of the 180-day period for the
Commissioner to decide. The second option is to await the final decision of the
Commissioner and appeal this decision within 30 days from its receipt. Here, Avon opted
for the second remedy by filing its petition on July 14, 2004, within 30 days from receipt
of the July 9, 2004 Collection Letter, which also served as the final decision denying its
protest. Hence, the Court of Tax Appeals En Banc ruled that it had jurisdiction over the
case.[41]

The Court of Tax Appeals En Banc further affirmed the Court of Tax Appeals Special
First Division's factual findings with regard to the cancellation of deficiency tax
assessments[42] and disallowance of Avon's claimed tax credits.[43]

Finally, the Court of Tax Appeals En Banc rejected Avon's contention regarding denial of
due process. It held that Avon was accorded by the Commissioner a reasonable
opportunity to explain and present evidence.[44] Moreover, the Commissioner's failure to
appreciate Avon's supporting documents and arguments did not ipso facto amount to
denial of due process absent any proof of irregularity in the performance of duties.[45]

In its April 10, 2012 Resolution,[46] the Court of Tax Appeals En Banc denied the
Commissioner's Motion for Reconsideration and Avon's Motion for Partial
Reconsideration. It held that the "RCBC case,"[47] cited by the Commissioner, was not on
all fours with, and therefore not applicable as stare decisis in this case. Instead, the ruling
in CIR v. Kudos Metal Corporation,[48] precluding the Bureau of Internal Revenue from
invoking the doctrine of estoppel to cover its failure to comply with the procedures in the
execution of a waiver, would apply.[49]

Hence, the present Petitions via Rule 45 were filed before this Court.

In her Petition,[50] docketed as G.R. Nos. 201398-99, the Commissioner asserts that Avon

is estopped from assailing the validity of the Waivers of the Defense of Prescription as it
has paid the other assessments that these waivers covered. It also avers that Avon's right
to appeal its protest before the Court of Tax Appeals has prescribed and that the
assessments have attained finality. Finally, it states that Avon is liable for the deficiency
assessments.[51]

Avon, in its separate Petition,[52] docketed as G.R. Nos. 201418-19, argues that the
assessments are void ab initio due to the failure of the Commissioner to observe due
process.[53] It maintains that from the start up to the end of the administrative process, the
Commissioner ignored all of its protests and submissions.[54]
The Petitions were consolidated on July 4, 2012.[55] The Commissioner and Avon
subsequently submitted their respective Memoranda[56] in compliance with this Court's
June 5, 2013 Resolution.[57]

The issues for this Court's resolution are:

First, whether or not the Commissioner of Internal Revenue failed to observe

administrative due process, and consequently, whether or not the assessments are void;

Second, whether or not Avon Products Manufacturing, Inc., by paying the other tax
assessments covered by the Waivers of the Defense of Prescription, is estopped from
assailing their validity;

Third, whether or not Avon Products Manufacturing, Inc.'s right to appeal its protest
before the Court of Tax Appeals has already prescribed; and whether or not the
assessments against it for deficiency income tax, excise tax, value-added tax, withholding
tax on compensation, and expanded withholding tax have already attained finality; and

Finally, whether or not Avon Products Manufacturing, Inc. is liable for deficiency
income tax, excise tax, value-added tax, withholding tax on compensation, and expanded
withholding tax for the taxable year 1999.

I.A

Avon asserts that the deficiency tax assessments are void because they were made
without due process[58] and were not based on actual facts but on the erroneous
presumptions of the Commissioner.[59]

It submits that a fundamental part of administrative due process is the administrative

body's due consideration and evaluation of all the evidence submitted by the affected
party. With regard to tax assessment and collection, Section 228 of the Tax Code and
Revenue Regulations No. 12-99 prescribe compliance with due process requirements
through all the four (4) stages of the assessment process, from the preliminary findings up
to the Commissioner's decision on the disputed assessment.[60]

Avon claims that from the start up to the end of the administrative process, the
Commissioner ignored all of its protests and submissions to contest the deficiency tax
assessments.[61] The Commissioner issued identical Preliminary Assessment Notice, Final
Assessment Notices, and Collection Letters without considering Avon's submissions or
its partial payment of the assessments. Avon asserts that it was not accorded
a real opportunity to be heard, making all of the assessments null and void.[62]

Avon's arguments are well-taken.

The Bureau of Internal Revenue is the primary agency tasked to assess and collect proper
taxes, and to administer and enforce the Tax Code.[63] To perform its functions of tax
assessment and collection properly, it is given ample powers under the Tax Code, such as
the power to examine tax returns and books of accounts,[64] to issue a subpoena,[65] and to
assess based on best evidence obtainable,[66] among others. However, these powers must
"be exercised reasonably and [under] the prescribed procedure."[67] The Commissioner
and revenue officers must strictly comply with the requirements of the law, with the
Bureau of Internal Revenue's own rules,[68] and with due regard to taxpayers'
constitutional rights.

The Commissioner exercises administrative adjudicatory power or quasi-judicial function

in adjudicating the rights and liabilities of persons under the Tax Code.

Quasi-judicial power has been described as:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the
administrative agency to adjudicate the rights of persons before it. It is the power to hear
and determine questions of fact to which the legislative policy is to apply and to decide
in accordance with the standards laid down by the law itself in enforcing and
administering the same law. The administrative body exercises its quasi-judicial power
when it performs in a judicial manner an act which is essentially of an executive or
administrative nature, where the power to act in such manner is incidental to or
reasonably necessary for the performance of the executive or administrative duty
entrusted to it.[69] (Emphasis supplied, citations omitted)

In carrying out these quasi-judicial functions, the Commissioner is required to

"investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and exercise of discretion in
a judicial nature."[70] Tax investigation and assessment necessarily demand the observance
of due process because they affect the proprietary rights of specific persons.

This Court has stressed the importance of due process in administrative proceedings:

The principle of due process furnishes a standard to which governmental action should
conform in order to impress it with the stamp of validity. Fidelity to such standard must
of necessity be the overriding concern of government agencies exercising quasi-judicial
functions. Although a speedy administration of action implies a speedy trial, speed is not
the chief objective of a trial. Respect for the rights of all parties and the requirements of
procedural due process equally apply in proceedings before administrative agencies with
quasi-judicial perspective in administrative decision making and for maintaining the
vision which led to the creation of the administrative office.[71]
In Ang Tibay v. The Court of Industrial Relations,[72] this Court observed that although
quasi-judicial agencies "may be said to be free from the rigidity of certain procedural
requirements[, it] does not mean that it can, in justiciable cases coming before it, entirely
ignore or disregard the fundamental and essential requirements of due process in trials
and investigations of an administrative character."[73] It then enumerated the fundamental
requirements of due process that must be respected in administrative proceedings:

(1) The party interested or affected must be able to present his or her own case and
submit evidence in support of it.
   
(2) The administrative tribunal or body must consider the evidence presented.
   
(3) There must be evidence supporting the tribunal's decision.
   
(4) The evidence must be substantial or "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." [74]
   
(5) The administrative tribunal's decision must be rendered on the evidence presented,
or at least contained in the record and disclosed to the parties affected.
   
(6) The administrative tribunal's decision must be based on the deciding authority's own
independent consideration of the law and facts governing the case.
   
(7) The administrative tribunal's decision is rendered in a manner that the parties may
know the various issues involved and the reasons for the decision. [75]

Mendoza v. Comelec[76] explained that the first requirement is the party's substantive right
at the hearing stage of the proceedings, which, in essence, is the opportunity to explain
one's side or to seek a reconsideration of the adverse action or ruling.

It was emphasized, however, that the mere filing of a motion for reconsideration does not
always result in curing the due process defect,[77] "especially if the motion was filed
precisely to raise the issue of violation of the right to due process and the lack of
opportunity to be heard on the merits remained."[78]

The second to the sixth requirements refer to the party's "inviolable rights applicable at
the deliberative stage."[79] The decision-maker must consider the totality of the evidence
presented as he or she decides the case.[80]

The last requirement relating to the form and substance of the decision is the decision-
maker's '"duty to give reason' to enable the affected person to understand how the rule of
fairness has been administered in his [or her] case, to expose the reason to public scrutiny
and criticism, and to ensure that the decision will be thought through by the decision-
maker."[81]
The Ang Tibay safeguards were subsequently "simplified into four basic rights,"[82] as
follows:

(a) [T]he right to notice, be it actual or constructive, of the institution of the proceedings
that may affect a person's legal right; (b) reasonable opportunity to appear and defend his
rights and to introduce witnesses and relevant evidence in his favor; (c) a tribunal so
constituted as to give him reasonable assurance of honesty and impartiality, and one of
competent jurisdiction; and (d) a finding or decision by that tribunal supported by
substantial evidence presented at the hearing or at least ascertained in the records or
disclosed to the parties.[83] (Emphasis supplied)

Saunar v. Ermita[84] expounded on Ang Tibay by emphasizing that while administrative

bodies enjoy a certain procedural leniency, they are nevertheless obligated to inform
themselves of all facts material and relevant to the case, and to render a decision based on
an accurate appreciation of facts. In this regard, this Court held that Ang Tibay did not
necessarily do away with the conduct of hearing and a party may invoke its right to a
hearing to thresh out substantial factual issues, thus:

A closer perusal of past jurisprudence shows that the Court did not intend to trivialize the
conduct of a formal hearing but merely afforded latitude to administrative bodies
especially in cases where a party fails to invoke the right to hearing or is given the
opportunity but opts not to avail of it. In the landmark case of Ang Tibay, the Court
explained that administrative bodies are free from a strict application of technical rules
of procedure and are given sufficient leeway. In the said case, however, nothing was said
that the freedom included the setting aside of a hearing but merely to allow matters
which would ordinarily be incompetent or inadmissible in the usual judicial proceedings.

In fact, the seminal words of Ang Tibay manifest a desire for administrative bodies to
exhaust all possible means to ensure that the decision rendered be based on the accurate
appreciation of facts. The Court reminded that administrative bodies have the
active duty to use the authorized legal methods of securing evidence and informing
itself of facts material and relevant to the controversy. As such, it would be more in
keeping with administrative due process that the conduct of a hearing be the general rule
rather than the exception.

....

To reiterate, due process is a malleable concept anchored on fairness and equity. The due
process requirement before administrative bodies are not as strict compared to judicial
tribunals in that it suffices that a party is given a reasonable opportunity to be heard.
Nevertheless, such "reasonable opportunity" should not be confined to the mere
submission of position papers and/or affidavits and the parties must be given the
opportunity to examine the witnesses against them. The right to a hearing is a right which
may be invoked by the parties to thresh out substantial factual issues. It becomes even
more imperative when the rules itself of the administrative body provides for one. While
the absence of a formal hearing does not necessarily result in the deprivation of due
process, it should be acceptable only when the party does not invoke the said right or
waives the same. [85] (Emphasis supplied)

In Saunar, this Court held that the petitioner in that case was denied due process when he
was not notified of the clarificatory hearings conducted by the Presidential Anti-Graft
Commission. Under the Presidential Anti-Graft Commission's Rules, in the event that a
clarificatory hearing was determined to be necessary, the Presidential Anti-Graft
Commission must notify the parties of the clarificatory hearings. Further, "the parties
shall be afforded the opportunity to be present in the hearings without the right to
examine witnesses. They, however, may ask questions and elicit answers from the
opposing party coursed through the [Presidential Anti-Graft Commission]."[86] This Court
held that the petitioner in Saunar was not treated fairly in the proceedings before the
Presidential Anti-Graft Commission because he was deprived of the opportunity to be
present in the clarificatory hearings and was denied the chance to propound questions
through the Presidential Anti-Graft Commission against the opposing parties.

"[A] fair and reasonable opportunity to explain one's side"[87] is one aspect of due process.
Another aspect is the due consideration given by the decision-maker to the arguments and
evidence submitted by the affected party.

Baguio Country Club Corp. v. National Labor Relations Commission[88] precisely

involved the question of the denial of due process for failure of the labor tribunals to
consider the evidence presented by the employer. The labor tribunals unanimously denied
the employer's application for clearance to terminate the services of an employee on the
ground of insufficient evidence to show a just cause for the employee's dismissal, and
ordered the reinstatement of the employee with backwages.

This Court held that "[t]he summary procedures used by the [labor tribunals] were too
summary to satisfy the requirements of justice and fair play."[89] It noted the irregular
procedures adopted by the Labor Arbiter. First, "[he] allowed a last minute position paper
of [the] respondent ... to be filed and without requiring a copy to be served upon the
Baguio Country Club and without affording the latter an opportunity to refute or rebut the
contents of the paper, [and] forthwith decided the case."[90] Second, "the petitioner
specifically stressed to the arbiter that it was 'adopting the investigations which were
enclosed with the application to terminate, which are now parts of the record of the
Ministry of Labor, as part and parcel of this position paper."'[91] But the Labor Arbiter,
instead of calling for the complete records of the conciliation proceedings, "denied the
application for clearance on the ground that all that was before it was a position paper
with mere quotations about an investigation conducted . . ."[92] This Court held that the
affirmance by the Commission of the decision of the Labor Arbiter was a denial of the
elementary principle of fair play.

[I]t was a denial of elementary principles of fair play for the Commission not to have
ordered the elevation of the entire records of the case with the affidavits earlier submitted
as part of the position paper but completely ignored by the labor arbiter. Or at the very
least, the case should have been remanded to the labor arbiter consonant with the
requirements of administrative due process.

The ever increasing scope of administrative jurisdiction and the statutory grant of
expansive powers in the exercise of discretion by administrative agencies illustrate our
nation's faith in the administrative process as an efficient and effective mode of public
control over sensitive areas of private activity. Because of the specific constitutional
mandates on social justice and protection to labor, and the fact that major labor
management controversies are highly intricate and complex, the legislature and executive
have reposed uncommon reliance upon what they believe is the expertise, the rational and
efficient modes of ascertaining facts, and the unbiased and discerning adjudicative
techniques of the Ministry of Labor and Employment and its instrumentalities.

....

The instant petition is a timely reminder to labor arbiters and all who wield quasi-judicial
power to ever bear in mind that evidence is the means, sanctioned by rules, of
ascertaining in a judicial or quasi-judicial proceeding, the truth respecting a matter of fact
... The object of evidence is to establish the truth by the use of perceptive and reasoning
faculties . . . The statutory grant of power to use summary procedures should heighten a
concern for due process, for judicial perspectives in administrative decision making, and
for maintaining the visions which led to the creation of the administrative office. [93]

In Alliance for the Family Foundation, Philippines, Inc. v. Garin,[94] this Court held that
the Food and Drug Administration failed to observe the basic requirements of due
process when it did not act on or address the oppositions submitted by petitioner Alliance
for the Family Foundation, Philippines, Inc., but proceeded with the registration,
recertification, and distribution of the questioned contraceptive drugs and devices. It
ruled that petitioner was not afforded the genuine opportunity to be heard.

Administrative due process is anchored on fairness and equity in procedure. [95] It is

satisfied if the party is properly notified of the charge against it and is given a fair and
reasonable opportunity to explain or defend itself.[96] Moreover, it demands that the
party's defenses be considered by the administrative body in making its conclusions,
[97]
 and that the party be sufficiently informed of the reasons for its conclusions.

I.B
Section 228 of the Tax Code, as implemented by Revenue Regulations No. 12-99,
provides certain procedures to ensure that the right of the taxpayer to procedural due
process is observed in tax assessments, thus:

Section 228. Protesting of Assessment. — When the Commissioner or his duly authorized

representative finds that proper taxes should be assessed, he shall first notify the taxpayer
of his findings: Provided, however, That a preassessment notice shall not be required in
the following cases:

(a) When the finding for any deficiency tax is the result of mathematical error in the
computation of the tax as appearing on the face of the return; or

(b) When a discrepancy has been determined between the tax withheld and the amount
actually remitted by the withholding agent; or

(c) When a taxpayer who opted to claim a refund or tax credit of excess creditable
withholding tax for a taxable period was determined to have carried over and
automatically applied the same amount claimed against the estimated tax liabilities for
the taxable quarter or quarters of the succeeding taxable year; or

(d) When the excise tax due on excisable articles has not been paid; or

(e) When an article locally purchased or imported by an exempt person, such as, but not
limited to, vehicles, capital equipment, machineries and spare parts, has been sold, traded
or transferred to non-exempt persons.

The taxpayers shall be informed in writing of the law and the facts on which the
assessment is made; otherwise, the assessment shall be void.

Within a period to be prescribed by implementing rules and regulations, the taxpayer

shall be required to respond to said notice. If the taxpayer fails to respond, the
Commissioner or his duly authorized representative shall issue an assessment based on
his findings.

Such assessment may be protested administratively by filing a request for reconsideration

or reinvestigation within thirty (30) days from receipt of the assessment in such form and
manner as may be prescribed by implementing rules and regulations. Within sixty (60)
days from filing of the protest, all relevant supporting documents shall have been
submitted; otherwise, the assessment shall become final.

If the protest is denied in whole or in part, or is not acted upon within one hundred eighty
(180) days from submission of documents, the taxpayer adversely affected by the
decision or inaction may appeal to the Court of Tax Appeals within thirty (30) days from
receipt of the said decision, or from the lapse of the one hundred eighty (180)-day period;
otherwise, the decision shall become final, executory and demandable.

Section 3 of Revenue Regulations No. 12-99[98] prescribes the due process requirement

for the four (4) stages of the assessment process:

Section 3. Due Process Requirement in the Issuance of a Deficiency Tax Assessment. —

3.1 Mode of procedures in the issuance of a deficiency tax assessment:

3.1.1 Notice for informal conference. — The Revenue Officer who audited the taxpayer's
records shall, among others, state in his report whether or not the taxpayer agrees with his
findings that the taxpayer is liable for deficiency tax or taxes. If the taxpayer is not
amenable, based on the said Officer's submitted report of investigation, the taxpayer
shall be informed, in writing, by the Revenue District Office or by the Special
Investigation Division, as the case may be (in the case Revenue Regional Offices) or by
the Chief of Division concerned (in the case of the BIR National Office) of the
discrepancy or discrepancies in the taxpayer's payment of his internal revenue
taxes, for the purpose of "Informal Conference,” in order to afford the taxpayer
with an opportunity to present his side of the case. If the taxpayer fails to respond
within fifteen (15) days from date of receipt of the notice for informal conference, he
shall be considered in default, in which case, the Revenue District Officer or the Chief
of the Special Investigation Division of the Revenue Regional Office, or the Chief of
Division in the National Office, as the case may be, shall endorse the case with the least
possible delay to the Assessment Division of the Revenue Regional Office or to the
Commissioner or his duly authorized representative, as the case may be, for appropriate
review and issuance of a deficiency tax assessment, if warranted.

3.1.2 Preliminary Assessment Notice (PAN). — If after review and evaluation by the
Assessment Division or by the Commissioner or his duly authorized representative, as the
case may be, it is determined that there exists sufficient basis to assess the taxpayer for
any deficiency tax or taxes, the said Office shall issue to the taxpayer, at least by
registered mail, a Preliminary Assessment Notice (PAN) for the proposed
assessment, showing in detail, the facts and the law, rules and regulations, or
jurisprudence on which the proposed assessment is based . . . If the taxpayer fails to
respond within fifteen (15) days from date of receipt of the PAN, he shall be
considered in default, in which case, a formal letter of demand and assessment notice
shall be caused to be issued by the said Office, calling for payment of the taxpayer's
deficiency tax liability, inclusive of the applicable penalties.

....
3.1.4 Formal Letter of Demand and Assessment Notice. —The formal letter of demand
and assessment notice shall be issued by the Commissioner or his duly authorized
representative. The letter of demand calling for payment of the taxpayer's deficiency
tax or taxes shall state the facts, the law, rules and regulations, or jurisprudence on
which the assessment is based, otherwise, the formal letter of demand and assessment
notice shall be void . . .

3.1.5 Disputed Assessment. — The taxpayer or his duly authorized representative

may protest administratively against the aforesaid formal letter of demand and
assessment notice within thirty (30) days from date of receipt thereof....

....

The taxpayer shall submit the required documents in support of his protest within sixty
(60) days from date of filing of his letter of protest, otherwise, the assessment shall
become final, executory and demandable. The phrase "submit the required documents"
includes submission or presentation of the pertinent documents for scrutiny and
evaluation by the Revenue Officer conducting the audit. The said Revenue Officer shall
state this fact in his report of investigation.

If the taxpayer fails to file a valid protest against the formal letter of demand and
assessment notice within thirty (30) days from date of receipt thereof, the assessment
shall become final, executory and demandable.

....

3.1.6 Administrative Decision on a Disputed Assessment. — The decision of the

Commissioner or his duly authorized representative shall (a) state the facts, the
applicable law, rules and regulations, or jurisprudence on which such decision is
based, otherwise, the decision shall be void . . . in which case, the same shall not be
considered a decision on a disputed assessment; and (b) that the same is his final
decision. (Emphasis supplied)

The importance of providing the taxpayer with adequate written notice of his or her tax
liability is undeniable. Under Section 228, it is explicitly required that the taxpayer be
informed in writing of the law and of the facts on which the assessment is made;
otherwise, the assessment shall be void. Section 3.1.2 of Revenue Regulations No. 12-99
requires the Preliminary Assessment Notice to show in detail the facts and law, rules and
regulations, or jurisprudence on which the proposed assessment is based. Further, Section
3.1.4 requires that the Final Letter of Demand must state the facts and law on which it is
based; otherwise, the Final Letter of Demand and Final Assessment Notices themselves
shall be void. Finally, Section 3.1.6 specifically requires that the decision of the
Commissioner or of his or her duly authorized representative on a disputed assessment
shall state the facts and law, rules and regulations, or jurisprudence on which the decision
is based. Failure to do so would invalidate the Final Decision on Disputed Assessment.

"The use of the word 'shall' in Section 228 of the [National Internal Revenue Code] and
in [Revenue Regulations] No. 12-99 indicates that the requirement of informing the
taxpayer of the legal and factual bases of the assessment and the decision made against
him [or her] is mandatory."[99] This is an essential requirement of due process and applies
to the Preliminary Assessment Notice, Final Letter of Demand with the Final Assessment
Notices, and the Final Decision on Disputed Assessment.

On the other hand, the taxpayer is explicitly given the opportunity to explain or present
his or her side throughout the process, from tax investigation through tax assessment.
Under Section 3.1.1 of Revenue Regulations No. 12-99, the taxpayer is given 15 days
from receipt of the Notice for Informal Conference to respond; otherwise, he or she will
be considered in default and the case will be referred to the Assessment Division for
appropriate review and issuance of deficiency tax assessment, if warranted. Again, under
Section 228 of the Tax Code and Section 3.1.2 of Revenue Regulations No. 12-99, the
taxpayer is required to respond within 15 days from receipt of the Preliminary
Assessment Notice; otherwise, he or she will be considered in default and the Final Letter
of Demand and Final Assessment Notices will be issued. After receipt of the Final Letter
of Demand and Final Assessment Notices, the taxpayer is given 30 days to file a protest,
and subsequently, to appeal his or her protest to the Court of Tax Appeals.

Avon asserts feigned compliance by the Bureau of Internal Revenue officials and agents
of their duties under the law and revenue regulation.[100] It adds that the administrative
proceeding conducted by the Bureau of Internal Revenue was "a farce," an idle ritual
tantamount to a denial of its right to be heard.[101] It specifies the Bureau of Internal
Revenue's inaction throughout the proceedings as follows:

First, during the informal conference, Avon orally rebutted and submitted a written
Reply[102] dated November 26, 2002, with attached supporting documents, to the summary
of audit findings of the Bureau of Internal Revenue. Revenue Examiner Enrico Z.
Gesmundo (Gesmundo), on cross-examination, admitted receiving its Reply with the
appended documents and that this Reply should be the basis of the Preliminary
Assessment Notice.[103]

However, the Commissioner issued the Preliminary Assessment Notice dated November
29, 2002, which simply reiterated the rebutted audit findings.[104] The alleged under-
declared sales was increased by more than 300% based on the alleged sales discrepancy
in the Third Quarter VAT Return vis á vis Financial Statement, without justifiable reason
and despite clean opinion of Avon's external auditor on its financial statements. [105]
Second, in its protest letter to the Preliminary Assessment Notice, Avon explained the
error in the presentation of export sales in the Third Quarter VAT Return. That is, instead
of presenting the total sales for the third quarter alone, the presentation was a cumulative
or year-to-date sales presentation. Avon appended copies of the Third Quarter VAT
Return and the General Ledger Pages of Export Sales to its protest letter to prove the
cumulative presentation of its sales. The Bureau of Internal Revenue Examiners accepted
their explanation during their meeting.[106]

However, within just two (2) weeks from receipt of Avon's protest letter, the
Commissioner issued the Final Letter of Demand and Final Assessment Notices,
reiterating the findings stated in the Preliminary Assessment Notice. [107] The Bureau of
Internal Revenue chose to ignore Avon's explanations and refused to cancel the
assessments unless Avon would agree to pay the other deficiency assessments. [108]

Third, since the Final Assessment Notices merely reiterated the findings in the
Preliminary Assessment Notice, Avon resubmitted its protest letter and supporting
documents. During the conference with the revenue officers on August 4, 2003, Avon
explained that it had already submitted all the reconciliation, schedules, and other
supporting documents. It also submitted additional documents as directed by the revenue
officers on June 26, 2003,[109] and presented the original General Ledger Book for 1999
for comparison by the Bureau of Internal Revenue's officers with the copies previously
submitted. Again, Avon explained the alleged sales discrepancy to the revenue officers,
who were convinced that there was no under declaration of sales, and that the sales
discrepancy between the Annual Income Tax Return and Quarterly VAT Return was
merely due to erroneous presentation of sales in the Third Quarter VAT Return.[110]

By this time, hoping that the Commissioner would cancel the deficiency income and
VAT assessments arising from the alleged sales discrepancy, Avon informed the Bureau
of Internal Revenue examiners that it would make a partial payment of the assessments,
which it did.[111]

Fourth, however, the Commissioner issued the Collection Letter[112] dated July 9, 2004
without deciding on the protest letter to the Final Assessment Notices. Once again, she
failed to even comment on the arguments raised or address the documents submitted by
Avon. Even the amounts supposedly paid by Avon were not deducted from the amount
demanded in the Collection Letter. To justify its issuance, the Commissioner falsely
alleged Avon of failing to submit its supporting documents. [113]

Fifth, Avon filed a request for withdrawal of the Collection Letter, but it was likewise
ignored.[114]

Finally, the documents which reveal the events after the filing of the protest to the Final
Assessment Notices on May 9, 2004 were missing from the Bureau of Internal Revenue
Records.[115] These were (a) the handwritten Minutes of the Bureau of Internal
Revenue/Taxpayer Conference on June 26, 2003; (b) Avon's letter[116] dated August 1,
2003, with supporting documents, received by Revenue Officer Gesmundo on August 4,
2003, showing Avon's submission of the documents required by the Revenue Officers
during the June 26, 2003 meeting; and (c) the two (2) Bureau of Internal Revenue Tax
Payment Confirmations dated January 30, 2004, and Payment Forms called Bureau of
Internal Revenue Form No. 0605.[117]

Avon further submits that the presumption of correctness of the assessments cannot apply
in the face of compelling proof that they were issued without due process. It adds that
"[h]ad the administrative process been conducted with fairness and in accordance with
the prescribed procedure, [it] need not have incurred [filing fees and other litigation
expenses to defend against a bloated deficiency tax assessment]." [118]

Against these claims of Avon, the Commissioner did not submit any refutation either in
her Comment[119] or Memorandum,[120] and even in her pleadings before the Court of Tax
Appeals. Instead, she could only give out a perfunctory resistance that "tax assessments . .
. are presumed correct and made in good faith."[121]

The Court of Tax Appeals ruled that the difference in the appreciation by the
Commissioner of Avon's supporting documents, which led to the deficiency tax
assessments, was not violative of due process. While the Commissioner has the duty to
receive the taxpayer's clarifications and explanations, she does not have the duty to accept
them on face value.[122]

This Court disagrees.

The facts demonstrate that Avon was deprived of due process. It was not fully apprised of
the legal and factual bases of the assessments issued against it. The Details of
Discrepancy[123] attached to the Preliminary Assessment Notice, as well as the Formal
Letter of Demand with the Final Assessment Notices, did not even comment or address
the defenses and documents submitted by Avon. Thus, Avon was left unaware on how
the Commissioner or her authorized representatives appreciated the explanations or
defenses raised in connection with the assessments. There was clear inaction of the
Commissioner at every stage of the proceedings.

First, despite Avon's submission of its Reply, together with supporting documents, to the
revenue examiners' initial audit findings, and its explanation during the informal
conference,[124] the Preliminary Assessment Notice was issued. The Preliminary
Assessment Notice reiterated the same audit findings, except for the alleged under-
declared sales which ballooned in amount from P15,700,000.00 to P62,900,000.00,
[125]
 without any discussion or explanation on the merits of Avon's explanations.
Upon receipt of the Preliminary Assessment Notice, Avon submitted its protest letter and
supporting documents,[126] and even met with revenue examiners to explain. Nonetheless,
the Bureau of Internal Revenue issued the Final Letter of Demand and Final Assessment
Notices, merely reiterating the assessments in the Preliminary Assessment Notice. There
was no comment whatsoever on the matters raised by Avon, or discussion of the Bureau
of Internal Revenue's findings in a manner that Avon may know the various issues
involved and the reasons for the assessments.

Under the Bureau of Internal Revenue's own procedures, the taxpayer is required to
respond to the Notice of Informal Conference and to the Preliminary Assessment Notice
within 15 days from receipt. Despite Avon's timely submission of a Reply to the Notice
of Informal Conference and protest to the Preliminary Assessment Notice, together with
supporting documents, the Commissioner and her agents violated their own procedures
by refusing to answer or even acknowledge the submitted Reply and protest.

The Notice of Informal Conference and the Preliminary Assessment Notice are a part of
due process.[127] They give both the taxpayer and the Commissioner the opportunity to
settle the case at the earliest possible time without the need for the issuance of a Final
Assessment Notice. However, this purpose is not served in this case because of the
Bureau of Internal Revenue's inaction or failure to consider Avon's explanations.

Upon receipt of the Final Assessment Notices, Avon resubmitted its protest and
submitted additional documents required by the revenue examiners, including the original
General Ledger for 1999. As testified by Avon's Finance Director, Mildred C. Emlano,
the Bureau of Internal Revenue examiners were convinced with Avon's explanation
during the meeting on August 4, 2003, particularly, that there was no underdeclaration of
sales.[128] Still, the Commissioner merely issued a Collection Letter dated July 9, 2004,
demanding from Avon the payment of the same deficiency tax assessments with a
warning that should it fail to do so within the required period, summary administrative
remedies would be instituted without further notice.[129] This Collection Letter was based
on the May 27, 2004 Memorandum of the Revenue Officers stating that "[Avon] failed to
submit supporting documents within 60-day period."[130] This inaction on the part of the
Bureau of Internal Revenue and its agents could hardly be considered substantial
compliance of what is mandated by Section 228 of the Tax Code and the Revenue
Regulation No. 12-99.

It is true that the Commissioner is not obliged to accept the taxpayer's explanations, as
explained by the Court of Tax Appeals.[131] However, when he or she rejects these
explanations, he or she must give some reason for doing so. He or she must give the
particular facts upon which his or her conclusions are based, and those facts must appear
in the record.
Indeed, the Commissioner's inaction and omission to give due consideration to the
arguments and evidence submitted before her by Avon are deplorable transgressions of
Avon's right to due process.[132] The right to be heard, which includes the right to present
evidence, is meaningless if the Commissioner can simply ignore the evidence without
reason.

In Edwards v. McCoy:[133]

The object of a hearing is as much to have evidence considered as it is to present it. The
right to adduce evidence, without the corresponding duty on the part of the board to
consider it, is vain. Such right is conspicuously futile if the person or persons to whom
the evidence is presented can thrust it aside without notice or consideration. [134]

In Ang Tibay, this Court similarly ruled that "[n]ot only must the party be given an
opportunity to present his case and to adduce evidence tending to establish the rights
which he asserts but the tribunal must consider the evidence presented."[135]

Furthermore, in Mendoza v. Commission on Elections,[136] this Court explained:

[T]he last requirement, relating to the form and substance of the decision of a quasi-
judicial body, further complements the hearing and decision-making due process rights
and is similar in substance to the constitutional requirement that a decision of a court
must state distinctly the facts and the law upon which it is based. As a component of the
rule of fairness that underlies due process, this is the "duty to give reason" to enable
the affected person to understand how the rule of fairness has been administered in
his case, to expose the reason to public scrutiny and criticism, and to ensure that the
decision will be thought through by the decision-maker.[137] (Emphasis supplied,
citation omitted)

In Villa v. Lazaro,[138] this Court held that Anita Villa (Villa) was denied due process
when the then Human Settlement Regulatory Commission ignored her submission, not
once but thrice, of the official documents certifying to her compliance with the pertinent
locational, zoning, and land use requirements, and plans for the construction of her
funeral parlor. It imposed on Villa a fine of P10,000.00 and required her to cease
operations on the spurious premise that she had failed to submit the required documents.
This Court found the Commissioner's failure or refusal to even acknowledge the
documents submitted by Villa indefensible. It further held that the defects in the
administrative proceedings "translate to a denial of due process against which the defense
of failure to take timely appeal will not avail."[139]

Similarly, in this case, despite Avon's submission of its explanations and pieces of
evidence to the assessments, the Commissioner failed to acknowledge these submissions
and instead issued identical Preliminary Assessment Notice, Final Letter of Demand with
the Final Assessment Notices, and Collection Letter, the latter being premised on Avon's
alleged failure to submit supporting documents to its protest. Had the Commissioner
performed her functions properly and considered the explanations and pieces of evidence
submitted by Avon, this case could have been settled at the earliest possible time. For
instance, all the evidence needed to settle the issue on under-declared sales, which
constituted the bulk of the deficiency tax assessments, have been submitted to the Bureau
of Internal Revenue. Indeed, from these same submissions, the Court of Tax Appeals
concluded that there was no under-declaration of sales. As aptly pointed out by Avon,
"The [Commissioner could not] feign simple mistake or misappreciation of the evidence .
. . because [the issue was] plain and simple."[140]

Moreover, the Court of Tax Appeals erroneously applied the "presumption of regularity"
in sustaining the Commissioner's assessments.

The presumption that official duty has been regularly performed is a disputable
presumption under Rule 131, Section 3(m) of the Rules of Court. As a disputable
presumption —

[I]t may be accepted and acted on where there is no other evidence to uphold the
contention for which it stands, or one which may be overcome by other evidence ...

The presumption of regularity of official acts may be rebutted by affirmative evidence of

irregularity or failure to perform a duty.[141] (Citation omitted)

In Sevilla v. Cardenas,[142] this Court refused to apply the "presumption of regularity"

when it noted that there was documentary and testimonial evidence that the civil registrar
did not exert utmost efforts before certifying that no marriage license was issued in favor
of one of the parties.

This Court also refused to apply the presumption of regularity in Bank of the Philippine
Islands v. Evangelista,[143] where the process server failed to show that he followed the
required procedures:

We cannot sustain petitioner's argument, which is anchored on the presumption of

regularity in the process server's performance of duty. The Court already had occasion to
rule that "[c]ertainly, it was never intended that the presumption of regularity in the
performance of official duty will be applied even in cases where there is no showing of
substantial compliance with the requirements of the rules of procedure." Such
presumption does not apply where it is patent that the sheriff's or server's return is
defective. Under this circumstance, respondents are not duty-bound to adduce further
evidence to overcome the presumption, which no longer holds.[144] (Citations omitted)
Here, contrary to the ruling of the Court of Appeals, the presumption of regularity in the
performance of the Commissioner's official duties cannot stand in the face of positive
evidence of irregularity or failure to perform a duty.

I.C

The Commissioner's total disregard of due process rendered the identical Preliminary
Assessment Notice, Final Assessment Notices, and Collection Letter null and void, and
of no force and effect.

This Court has, in several cases, declared void any assessment that failed to strictly
comply with the due process requirements set forth in Section 228 of the Tax Code and
Revenue Regulation No. 12-99.

In Commissioner of Internal Revenue v. Metro Star Superama, Inc.,[145] this Court held

that failure to send a Preliminary Assessment Notice stating the facts and the law on
which the assessment was made as required by Section 228 of the Tax Code rendered the
assessment made by the Commissioner as void. This Court explained:

Indeed, Section 228 of the Tax Code clearly requires that the taxpayer must first be
informed that he is liable for deficiency taxes through the sending of a PAN. He must be
informed of the facts and the law upon which the assessment is made. The law imposes a
substantive, not merely a formal, requirement. To proceed heedlessly with tax collection
without first establishing a valid assessment is evidently violative of the cardinal
principle in administrative investigations — that taxpayers should be able to present their
case and adduce supporting evidence.[146] (Citation omitted)

In Commissioner of Internal Revenue v. Reyes,[147] this Court ruled as void an assessment

for deficiency estate tax issued by the Commissioner for failure to inform the taxpayer of
the law and the facts on which the assessment was made, in violation of Section 228 of
the Tax Code.

In Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue,[148] this

Court ruled, among others, that the taxpayer was deprived of due process when the
Commissioner failed to issue a notice of informal conference and a Preliminary
Assessment Notice as required by Revenue Regulation No. 12-99, in relation to Section
228 of the Tax Code. Hence, the assessment was void.

Compliance with strict procedural requirements must be followed in the collection of

taxes as emphasized in Commissioner of Internal Revenue v. Algue, Inc.:[149]

Taxes are the lifeblood of the government and so should be collected without
unnecessary hindrance. On the other hand, such collection should be made in
accordance with law as any arbitrariness will negate the very reason for government
itself. It is therefore necessary to reconcile the apparently conflicting interests of the
authorities and the taxpayers so that the real purpose of taxation, which is the promotion
of the common good, may be achieved.

....

It is said that taxes are what we pay for civilized society. Without taxes, the government
would be paralyzed for lack of the motive power to activate and operate it. Hence, despite
the natural reluctance to surrender part of one's hard-earned income to the taxing
authorities, every person who is able to must contribute his share in the running of the
government. The government for its part, is expected to respond in the form of tangible
and intangible benefits intended to improve the lives of the people and enhance their
moral and material values. This symbiotic relationship is the rationale of taxation and
should dispel the erroneous notion that it is an arbitrary method of exaction by those in
the seat of power.

But even as we concede the inevitability and indispensability of taxation, it is a

requirement in all democratic regimes that it be exercised reasonably and in
accordance with the prescribed procedure. If it is not, then the taxpayer has a right
to complain and the courts will then come to his succor. For all the awesome power
of the tax collector, he may still be stopped in his tracks if the taxpayer can
demonstrate ... that the law has not been observed.[150] (Emphasis supplied)

In this case, Avon was able to amply demonstrate the Commissioner's disregard of the
due process standards raised in Ang Tibay and subsequent cases, and of the
Commissioner's own rules of procedure. Her disregard of the standards and rules renders
the deficiency tax assessments null and void. This Court, nonetheless, proceeds to discuss
the points raised by the Commissioner pertaining to estoppel and prescription.

II

As a general rule, petitioner has three (3) years from the filing of the return to assess
taxpayers. Section 203 of the Tax Code provides:

Section 203. Period of Limitation Upon Assessment and Collection. — Except as

provided in Section 222, internal revenue taxes shall be assessed within three (3) years
after the last day prescribed by law for the filing of the return, and no proceeding in court
without assessment for the collection of such taxes shall be begun after the expiration of
such period: Provided, That in a case where a return is filed beyond the period prescribed
by law, the three (3)-year period shall be counted from the day the return was filed. For
purposes of this Section, a return filed before the last day prescribed by law for the filing
thereof shall be considered as filed on such last day.
An exception to the rule of prescription is found m Section 222, paragraphs (b) and (d) of
the same Code, viz:

Section 222. Exceptions as to Period of Limitation of Assessment and Collection of

Taxes. —

....

(b) If before the expiration of the time prescribed in Section 203 for the assessment of the
tax, both the Commissioner and the taxpayer have agreed in writing to its assessment
after such time, the tax may be assessed within the period agreed upon. The period so
agreed upon may be extended by subsequent written agreement made before the
expiration of the period previously agreed upon.

....

(d) Any internal revenue tax, which has been assessed within the period agreed upon as
provided in paragraph (b) hereinabove, may be collected by distraint or levy or by a
proceeding in court within the period agreed upon in writing before the expiration of the
five (5)-year period. The period so agreed upon may be extended by subsequent written
agreements made before the expiration of the period previously agreed upon.

Thus, the period to assess and collect taxes may be extended upon the Commissioner and
the taxpayer's written agreement, executed before the expiration of the three (3)-year
period.

In this case, two (2) waivers were supposedly executed by the parties extending the
prescriptive periods for assessment of income tax, VAT, and expanded and final
withholding taxes to January 14, 2003, and then to April 14, 2003.[151]

The Court of Tax Appeals, both the Special First Division and En Banc, declared the two
(2) Waivers of the Defense of Prescription defective and void, for the Commissioner's
failure to furnish signed copies of the Waivers to Avon, in violation of the requirements
provided in Revenue Memorandum Order No. 20-90.[152]

Indeed, a Waiver of the Defense of Prescription is a bilateral agreement between a

taxpayer and the Bureau of Internal Revenue to extend the period of assessment and
collection to a certain date. "The requirement to furnish the taxpayer with a copy of the
waiver is not only to give notice of the existence of the document but of the acceptance
by the [Bureau of Internal Revenue] and the perfection of the agreement."[153]

However, the Commissioner in this case contends that Avon is estopped from assailing
the validity of the Waivers of the Defense of Prescription that it executed when it paid
portions of the disputed assessments.[154] The Commissioner invokes the ruling in Rizal
Commercial Banking Corporation v. Commissioner of Internal Revenue,[155] which
allegedly must be applied as stare decisis.[156]

The Commissioner's contention is untenable.

Rizal Commercial Banking Corporation is not on all fours with this case. The estoppel
upheld in that case arose from the benefit obtained by the taxpayer from its execution of
the waiver, in the form of a drastic reduction of the deficiency taxes, and the taxpayer's
payment of a portion of the reduced tax assessment. In that case, this Court explained that
Rizal Commercial Banking Corporation's partial payment of the revised assessments
effectively belied its insistence that the waivers were invalid and the assessments were
issued beyond the prescriptive period. Thus:

Estoppel is clearly applicable to the case at bench. RCBC, through its partial payment of
the revised assessments issued within the extended period as provided for in the
questioned waivers, impliedly admitted the validity of those waivers. Had petitioner truly
believed that the waivers were invalid and that the assessments were issued beyond the
prescriptive period, then it should not have paid the reduced amount of taxes in the
revised assessment. RCBC's subsequent action effectively belies its insistence that the
waivers are invalid. The records show that on December 6, 2000, upon receipt of the
revised assessment, RCBC immediately made payment on the uncontested taxes. Thus,
RCBC is estopped from questioning the validity of the waivers. To hold otherwise and
allow a party to gainsay its own act or deny rights which it had previously recognized
would run counter to the principle of equity which this institution holds dear.[157] (Citation
omitted)

Here, Avon claimed that it did not receive any benefit from the waivers.[158] On the
contrary, there was even a drastic increase in the assessed deficiency taxes when the
Commissioner increased the alleged sales discrepancy from P15,700,000.00 in the
preliminary findings to P62,900,000.00 in the Preliminary Assessment Notice and Final
Assessment Notices. Furthermore, Avon was compelled to pay a portion of the deficiency
assessments "in compliance with the Revenue Officer's condition in the hope of
cancelling the assessments on the non-existent sales discrepancy." [159] Under these
circumstances, Avon's payment of an insignificant portion of the assessment cannot be
deemed an admission or recognition of the validity of the waivers.

On the other hand, the Court of Tax Appeals' reliance on the general rule enunciated
in Commissioner of Internal Revenue v. Kudos Metal Corporation[160] is proper. In that
case, this Court ruled that the Bureau of Internal Revenue could not hide behind the
doctrine of estoppel to cover its failure to comply with its own procedures. "[A] waiver of
the statute of limitations [is] a derogation of the taxpayer's right to security against
prolonged and unscrupulous investigations [and thus, it] must be carefully and strictly
construed."[161]

III

The Commissioner of Internal Revenue in this case asserts that since Avon filed its
protest on May 9, 2003, it only had 30 days from November 5, 2003, i.e., the end of the
180 days, or until December 5, 2003 within which to appeal to the Court of Tax Appeals.
As Avon only filed its appeal on August 13, 2004, its right to appeal has prescribed. [162]

Avon counters that it acted in good faith and in accordance with Rule 4, Section 3 of the
Revised Rules of the Court of Tax Appeals and jurisprudence when it opted to wait for
the decision of the Commissioner and appeal it within the 30-day period.[163] "The
Collection Letter, albeit void, constitutes a constructive denial of Avon's protest and is
the final decision of the [Commissioner] for purposes of counting the reglementary 30-
day period to appeal[.]"[164] Since Avon received the Collection Letter on July 14, 2004,
its Petition for Review was timely filed on August 13, 2004.[165] At any rate, Avon argues
that the issue on the timeliness of its appeal was raised by the Commissioner only in its
Motion for Reconsideration of the Court of Tax Appeals En Banc November 9, 2011
Decision, and a belated consideration of this matter would violate its right to due process
and fair play.[166]

The issue on whether Avon's Petition for Review before the Court of Tax Appeals was
time-barred requires the interpretation and application of Section 228 of the Tax
Code, viz:

Section 228. Protesting of Assessment. —

....

Such assessment may be protested administratively by filing a request for reconsideration

or reinvestigation within thirty (30) days from receipt of the assessment in such form and
manner as may be prescribed by implementing rules and regulations. Within sixty (60)
days from filing of the protest, all relevant supporting documents shall have been
submitted; otherwise, the assessment shall become final.

If the protest is denied in whole or in part, or is not acted upon within one hundred
eighty (180) days from submission of documents, the taxpayer adversely affected by
the decision or inaction may appeal to the Court of Tax Appeals within thirty (30)
days from receipt of the said decision, or from the lapse of the one hundred eighty
(180)-day period; otherwise, the decision shall become final, executory and
demandable. (Emphasis supplied)
Section 228 of the Tax Code amended Section 229[167] of the Old Tax Code[168] by adding,
among others, the 180-day rule. This new provision presumably avoids the situation in
the past when a taxpayer would be held hostage by the Commissioner's inaction on his or
her protest. Under the Old Tax Code, in conjunction with Section 11 of Republic Act No.
1125, only the decision or ruling of the Commissioner on a disputed assessment is
appealable to the Court of Tax Appeals. Consequently, the taxpayer then had to wait for
the Commissioner's action on his or her protest, which more often was long-delayed.
[169]
 With the amendment introduced by Republic Act No. 8424, the taxpayer may now
immediately appeal to the Court of Tax Appeals in case of inaction of the Commissioner
for 180 days from submission of supporting documents.

Republic Act No. 9282, or the new Court of Tax Appeals Law, which took effect on
April 23, 2004, amended Republic Act No. 1125 and included a provision
complementing Section 228 of the Tax Code, as follows:

Section 7. Jurisdiction. — The CTA shall exercise:

(a) Exclusive appellate jurisdiction to review by appeal, as herein provided:

....

(2) Inaction by the Commissioner of Internal Revenue in cases involving disputed

assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation
thereto, or other matters arising under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue, where the National Internal Revenue
Code provides a specific period of action, in which case the inaction shall be deemed
a denial[.] (Emphasis supplied)

Under Section 7(a)(2) above, it is expressly provided that the "inaction" of the
Commissioner on his or her failure to decide a disputed assessment within 180 days is
"deemed a denial" of the protest.

In Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue,[170] this

Court, by way of an obiter, ruled as follows:

In case the Commissioner failed to act on the disputed assessment within the 180-day
period from the date of submission of documents, a taxpayer can either: 1) file a petition
for review with the Court of Tax Appeals within 30 days after the expiration of the 180-
day period; or 2) await the final decision of the Commissioner on the disputed assessment
and appeal such final decision to the Court of Tax Appeals within 30 days after receipt of
a copy of such decision. However, these options are mutually exclusive, and resort to one
bars the application of the other.[171]
In Rizal Commercial Banking Corporation, the Commissioner failed to act on the
disputed assessment within 180 days from date of submission of documents. Thus, Rizal
Commercial Banking Corporation opted to file a Petition for Review before the Court of
Tax Appeals. Unfortunately, it was filed more than 30 days following the lapse of the
180-day period. Consequently, it was dismissed by the Court of Tax Appeals for late
filing. Rizal Commercial Banking Corporation did not file a Motion for Reconsideration
or make an appeal; hence, the disputed assessment became final and executory.

Subsequently, Rizal Commercial Banking Corporation filed a petition for relief from
judgment on the ground of excusable negligence, but this was denied by the Court of Tax
Appeals for lack of merit. This Court affirmed the Court of Tax Appeals. It further held
that even if the negligence of Rizal Commercial Banking Corporation's counsel was
excusable and the petition for relief from judgment would be granted, it would not fare
any better because its action for cancellation of assessments had already prescribed since
its Petition was filed beyond the 180+30-day period stated in Section 228.

Rizal Commercial Banking Corporation then filed a Motion for Reconsideration.

Denying the motion, this Court held that it could not anymore "claim that the disputed
assessment is not yet final as it remained unacted upon by the Commissioner; that it can
still await the final decision of the Commissioner and thereafter appeal the same to the
Court of Tax Appeals."[172] Since it had availed of the first option by filing a petition for
review because of the Commissioner's inaction, although late, it could no longer resort to
the second option.

Rizal Commercial Banking Corporation referred to Rule 4, Section 3(a)(2) of the 2005

Revised Rules of the Court of Tax Appeals, or the 2005 Court of Tax Appeals Rules,
which provides:

Section 3. Cases Within the Jurisdiction of the Court in Divisions. — The Court in
Divisions shall exercise:

(a) Exclusive original or appellate jurisdiction to review by appeal the following:

....
(2) Inaction by the Commissioner of Internal Revenue in cases involving
disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the National Internal
Revenue Code or other laws administered by the Bureau of Internal Revenue,
where the National Internal Revenue Code or other applicable law provides a
specific period for action: Provided, that in case of disputed assessments, the
inaction of the Commissioner of Internal Revenue within the one hundred eighty
day-period under Section 228 of the National Internal Revenue Code shall be
deemed a denial for purposes of allowing the taxpayer to appeal his case to the
Court and does not necessarily constitute a formal decision of the Commissioner
of Internal Revenue on the tax case; Provided, further, that should the taxpayer
 opt to await the final decision of the Commissioner of Internal Revenue on the
disputed assessments beyond the one hundred eighty day-period
abovementioned, the taxpayer may appeal such final decision to the Court under
Section 3(a), Rule 8 of these Rules; and Provided, still further, that in the case of
claims for refund of taxes erroneously or illegally collected, the taxpayer must file
a petition for review with the Court prior to the expiration of the two-year period
under Section 229 of the National Internal Revenue Code[.] (Emphasis supplied)

In Lascona Land Co., Inc. v. Commissioner of Internal Revenue,[173] this Court reaffirmed

Rizal Commercial Banking Corporation, viz:

In arguing that the assessment became final and executory by the sole reason that
petitioner failed to appeal the inaction of the Commissioner within 30 days after the 180-
day reglementary period, respondent, in effect, limited the remedy of Lascona, as a
taxpayer, under Section 228 of the NIRC to just one, that is — to appeal the inaction of
the Commissioner on its protested assessment after the lapse of the 180-day period. This
is incorrect.

....

[W]hen the law provided for the remedy to appeal the inaction of the CIR, it did not
intend to limit it to a single remedy of filing of an appeal after the lapse of the 180-day
prescribed period. Precisely, when a taxpayer protested an assessment, he naturally
expects the CIR to decide either positively or negatively. A taxpayer cannot be prejudiced
if he chooses to wait for the final decision of the CIR on the protested assessment. More
so, because the law and jurisprudence have always contemplated a scenario where the
CIR will decide on the protested assessment.[174]

This Court, nonetheless, stressed that these two (2) options of the taxpayer, i.e., to (1) file
a petition for review before the Court of Tax Appeals within 30 days after the expiration
of the 180-day period; or (2) to await the final decision of the Commissioner on the
disputed assessment and appeal this final decision to the Court of Tax Appeals within 30
days from receipt of it, "are mutually exclusive and resort to one bars the application of
the other." [175]

Rule 4, Section 3(a)(2) of the 2005 Court of Tax Appeals Rules clarifies Section 7(a)(2)
of Republic Act No. 9282 by stating that the "deemed a denial'' rule is only for the
"purposes of allowing the taxpayer to appeal" in case of inaction of the Commissioner
and "does not necessarily constitute a formal decision of the Commissioner."
Furthermore, the same provision clarifies that the taxpayer may choose to wait for the
final decision of the Commissioner even beyond the 180-day period, and appeal from it.
The 2005 Court of Tax Appeals Rules were approved by the Court En Banc on
November 22, 2005, in A.M. No. 05-11-07-CTA, pursuant to its constitutional rule-
making authority.[176] Under Article VIII, Section 5, paragraph 5 of the 1987 Constitution:

Section 5. The Supreme Court shall have the following powers:

....

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphases supplied)

In Metro Construction, Inc. v. Chatham Properties, Inc.,[177] this Court held:

There is no controversy on the principle that the right to appeal is statutory. However, the
mode or manner by which this right may be exercised is a question of procedure which
may be altered and modified provided that vested rights are not impaired. The Supreme
Court is bestowed by the Constitution with the power and prerogative, inter alia, to
promulgate rules concerning pleadings, practice and procedure in all courts, as well as to
review rules of procedure of special courts and quasi-judicial bodies, which, however,
shall remain in force until disapproved by the Supreme Court. This power is
constitutionally enshrined to enhance the independence of the Supreme Court.
[178]
 (Citation omitted)

Carpio-Morales v. Court of Appeals[179] elucidated that while Congress has the authority

to establish the lower courts, including the Court of Tax Appeals, and to define,
prescribe, and apportion their jurisdiction, the authority to promulgate rules of procedure
is exclusive to this Court:

A court's exercise of the jurisdiction it has acquired over a particular case conforms

to the limits and parameters of the rules of procedure duly promulgated by this
Court. In other words, procedure is the framework within which judicial power is
exercised. In Manila Railroad Co. v. Attorney-General, the Court elucidated that "[t]he
power or authority of the court over the subject matter existed and was fixed before
procedure in a given cause began. Procedure does not alter or change that power or
authority; it simply directs the manner in which it shall be fully and justly exercised.
To be sure, in certain cases, if that power is not exercised in conformity with the
provisions of the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. This does not mean that it loses jurisdiction of the subject
matter."
While the power to define, prescribe, and apportion the jurisdiction of the various courts
is, by constitutional design, vested unto Congress, the power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts belongs exclusively to this Court. (Emphasis in
the original, citations omitted)[180]

Section 228 of the Tax Code and Section 7 of Republic Act No. 9282 should be read in
conjunction with Rule 4, Section 3(a)(2) of the 2005 Court of Tax Appeals Rules. In
other words, the taxpayer has the option to either elevate the case to the Court of Tax
Appeals if the Commissioner does not act on his or her protest, or to wait for the
Commissioner to decide on his or her protest before he or she elevates the case to the
Court of Tax Appeals. This construction is reasonable considering that Section 228 states
that the decision of the Commissioner not appealed by the taxpayer becomes final,
executory, and demandable.

IV

In this case, Avon opted to wait for the final decision of the Commissioner on its protest
filed on May 9, 2003.

This Court holds that the Collection Letter dated July 9, 2004 constitutes the final
decision of the Commissioner that is appealable to the Court of Tax Appeals. [181] The
Collection Letter dated July 9, 2004 demanded from Avon the payment of the deficiency
tax assessments with a warning that should it fail to do so within the required period,
summary administrative remedies would be instituted without further notice.[182] The
Collection Letter was purportedly based on the May 27, 2004 Memorandum of the
Revenue Officers stating that Avon "failed to submit supporting documents within 60-
day period."[183] This Collection Letter demonstrated a character of finality such that there
can be no doubt that the Commissioner had already made a conclusion to deny Avon's
request and she had the clear resolve to collect the subject taxes.

Avon received the Collection Letter on July 14, 2004. Hence, Avon's appeal to the Court
of Tax Appeals filed on August 13, 2004 was not time-barred.

In any case, even if this Court were to disregard the Collection Letter as a final decision
of the Commissioner on Avon's protest, the Collection Letter constitutes an act of the
Commissioner on "other matters" arising under the National Internal Revenue Code,
which, pursuant to Philippine Journalists, Inc. v. CIR,[184] may be the subject of an
appropriate appeal before the Court of Tax Appeals.

On a final note, the Commissioner is reminded of her duty enunciated in Section 3.1.6 of
Revenue Regulations No. 12-99 to render a final decision on disputed assessment.
Section 228 of the Tax Code requires taxpayers to exhaust administrative remedies by
filing a request for reconsideration or reinvestigation within 30 days from receipt of the
assessment. Exhaustion of administrative remedies is required prior to resort to the Court
of Tax Appeals precisely to give the Commissioner the opportunity to "re-examine its
findings and conclusions"[185] and to decide the Issues raised within her competence.[186]

Paat v. Court of Appeals[187] wrote:

This Court in a long line of cases has consistently held that before a party is allowed to
seek the intervention of the court, it is a pre-condition that he should have availed of all
the means of administrative processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction then
such remedy should be exhausted first before court's judicial power can be sought. The
premature invocation of court's intervention is fatal to one's cause of action. Accordingly,
absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of
cause of action. This doctrine of exhaustion of administrative remedies was not
without its practical and legal reasons, for one thing, availment of administrative
remedy entails lesser expenses and provides for a speedier disposition of
controversies. It is no less true to state that the courts of justice for reasons of
comity and convenience will shy away from a dispute until the system of
administrative redress has been completed and complied with so as to give the
administrative agency concerned every opportunity to correct its error and to
dispose of the case.[188] (Emphasis supplied, citations omitted)

Taxpayers cannot be left in quandary by the Commissioner's inaction on the protested

assessment. It is imperative that the taxpayers are informed of the Commissioner's action
for them to take proper recourse to the Court of Tax Appeals at the opportune time.
[189]
 Furthermore, this Court had time and again expressed the dictum that "the
Commissioner should always indicate to the taxpayer in clear and unequivocal language
what constitutes his [or her] final determination of the disputed assessment. That
procedure is demanded by the pressing need for fair play, regularity and orderliness in
administrative action."[190]

While indeed the government has an interest in the swift collection of taxes, its
assessment and collection should be exercised justly and fairly, and always in strict
adherence to the requirements of the law and of the Bureau of Internal Revenue's own
rules.

WHEREFORE, the Petition of the Commissioner of Internal Revenue in G.R.

Nos. 201398-99 is DENIED. The Petition of Avon Products Manufacturing, Inc. in G.R.
Nos. 201418-19 is GRANTED. The remaining deficiency Income Tax under Assessment
No. LTAID-II-IT-99-00018 in the amount of P357,345.88 for taxable year 1999,
including increments, is hereby declared NULL and VOID and is CANCELLED.
SO ORDERED.

FIRST DIVISION
[ G.R. No. 233209, March 11, 2019 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HEROFIL
OLARTE Y NAMUAG, ACCUSED-APPELLANT.

DECISION

GESMUNDO, J.:

The State's bounden duty to keep its people and those who sojourn within its territory
safe from harm includes its obligation to protect their rights from any bureaucratic abuse.
Striking a balance between utilizing sovereign police power and safeguarding mandated
civil liberties has plagued adjudicators worldwide and has invited differing and
sometimes divisive opinions. Nonetheless, courts are called upon to temper any
philosophical debates and conflicting interests between law enforcement and protection
of civil rights. This they can accomplish with lucid and objective decisions imbued with
the wisdom of the Constitution and reflecting the majesty of the law and jurisprudence.

The Case

This is an appeal by accused-appellant Herofil N. Olarte (accused-appellant) seeking to

reverse the April 6, 2017 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC
No. 01501-MIN which affirmed the January 27, 2016 Joint Judgment[2] of the Regional
Trial Court, Cagayan de Oro City, Misamis Oriental, Branch 21 (RTC), in Crim. Case
Nos. 2014-830 and 2014-831. Accused-appellant was convicted for violation of Republic
Act (RA) No. 9516[3] which amended Sections 3 and 4 of Presidential Decree (P.D.) No.
1866,[4] and of Section 35, Article V of Republic Act No. 10591.[5] The
RTC acquitted accused-appellant of the charge of using an imitation firearm (.25 caliber
pistol) in the commission of a crime (R.A. No. 10591) but convicted him of unlawfully
carrying an M61 fragmentation grenade with an M204A2 fuse[6] assembly without the
necessary license or permit to possess it (RA. No. 9516).

Antecedents

Accused-appellant was separately charged for illegal or unauthorized possession of a

hand grenade and an unlicensed pistol (later found to be a replica). The relevant portions
of the Informations[7] are as follows:

Criminal Case No. 2014-830

That on July 19, 2014, at more or less 1:30 o'clock in the afternoon at LBC Pabayo-
Chavez Streets, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law, permit or license to
possess or carry [an] explosive, did then and there willfully, unlawfully, criminally and
knowingly have in his possession, custody and control, one (1) Fuze M204A2 Grenade
without first securing the necessary license or permit to possess the same from the proper
authorities.

Contrary to law.[8]

Criminal Case No. 2014-831

That on July 19, 2014, at more or less 1:30 o'clock in the afternoon at LBC Pabayo-
Chavez Streets, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law, permit or license to
possess or carry [a] firearm, did then and there willfully, unlawfully, criminally and
knowingly have in his possession, custody and control, One (1) Caliber .25 Pistol
(Replica) without first securing the necessary license or permit to possess the same from
the proper authorities.

Contrary to law.[9]

Version of the Prosecution

Police Officer 2 Reggie M. Intud (PO2 Intud) and Police Officer 2 Pablo B. Monilar,

Jr. (PO2 Monilar) were members of Task Force "Boy Solo," a team formed in response
to reports that a lone gunman was believed to be responsible for several robbery incidents
at Pabayo and Chavez Streets in Cagayan de Oro City. On July 19, 2014, at around 1:30
P.M., PO2 Intud and PO2 Monilar were conducting discreet monitoring operations in the
area.[10] During their watch, they noticed a man walking towards a branch of LBC
Express, Inc. (LBC), a commercial establishment. His features resembled "Boy Solo"
whose image was shown in closed circuit television (CCTV) footages of past robberies in
the area.[11] As "Boy Solo" was about to enter the establishment, he pulled out a firearm.
[12]
 This prompted PO2 Intud and PO2 Monilar to immediately run towards the suspect.
[13]
 "Boy Solo," however, noticed the police officers running towards him so he ran away.
[14]
 "Boy Solo's" companions – Randy P. Tandoy, Dexter D. Caracho and Rodel B.
Rubilla,[15] acting as his lookouts, also fled from their posts. They all boarded a Cugman
Liner, a public utility jeepney heading towards the Cogon Market.[16] Eventually, accused-
appellant was arrested near Ororama Superstore in Cogon after a chase by PO2 Intud and
PO2 Monilar. His three companions were caught in a follow-up operation. [17]

During the arrest, PO2 Intud and PO2 Monilar searched accused-appellant's person and
recovered a .25 caliber pistol replica, a fragmentation grenade with an M204A2 fuse
assembly, a flathead screwdriver, and a transparent heat-sealed plastic sachet containing a
white crystalline substance believed to be methamphetamine hydrochloride. [18] PO2 Intud
then wrapped the grenade with masking tape and marked it with his initials RMI2.
[19]
 Thereafter, the police officers brought accused-appellant to Police Station 1-Divisoria
where the incident was recorded in the police blotter.[20] PO2 Intud then turned over the
grenade to the prosecutor but the latter refused to take custody of It. He handed it to Chief
Investigator Senior Police Officer 2 Allan Radaza (SPO2 Radaza) who, in turn, entrusted
it to the PNP Explosive Ordnance Disposal (EOD) Team headed by SPO2 Dennis Allan
Poe L. Tingson (SPO2 Tingson).[21] SPO2 Tingson inspected the grenade and identified it
as an M61 fragmentation hand grenade with an M204A2 fuse assembly. He issued an
acknowledgement receipt[22] and a certification[23] to the same."[24] Finally, the police
officers found out that accused-appellant had no license or permit to possess the M61
hand grenade as well as the .25 caliber pistol, though a replica.[25]

Version of Accused-Appellant

On July 19, 2014, accused-appellant boarded a passenger jeepney bound for Tablon,
Cagayan de Oro City.[26] When the jeepney stopped in front of Ororama Superstore, two
civilian-dressed persons suddenly approached. They bear-hugged and handcuffed him,
then told him to go with them.[27] Startled, accused-appellant resisted, saying he did
nothing wrong.[28] He was then brought by his captors to Police Station 1-Divisoria where
his bag was confiscated.[29] Afterwards, another person came to the police station with a
grenade and a pistol replica claiming that these were found inside accused-appellant's
bag.[30] Accused-appellant was then forced by the police officers to admit to illegally
possessing the grenade and imitation pistol.[31]

The RTC Ruling

On January 30, 2015, the Hall of Justice of Cagayan de Oro City was razed by a fire
which burned all the records therein including those pertaining to the original information
and arraignment of accused-appellant, as well as some of the evidence presented by the
prosecution.[32]

On April 27, 2015, accused-appellant was re-arraigned. The prosecution undertook the
retaking of the testimonies and the refiling of judicial affidavits already executed by some
of its witnesses, as part of the efforts to reconstitute the lost records. [33]
In the course of reconstituting the records, the prosecution moved for the amendment of
the Information in Criminal Case No. 2014-830 (illegal possession of hand grenade)
seeking to change the reflected fuse assembly marking from "M204X2" to "M204A2."
This was eventually granted by the RTC.[34]

On January 27, 2016, the RTC rendered a joint judgment[35] finding accused-appellant

guilty beyond reasonable doubt of illegal possession of a hand grenade, for the following
reasons: (a) an accused may be arrested and searched without warrant when he/she is
attempting to commit an offense;[36] and (b) frame-up, denial, and alibi are weak and self-
serving defenses which cannot overcome the affirmative and straightforward allegations
of the prosecution's witnesses.[37] However, it dismissed the case of illegal possession of a
.25 caliber pistol replica against accused-appellant because the Information in Criminal
Case No. 2014-831 was defective. It only alleged that the pistol replica was merely
possessed and not used in the commission of a crime as contemplated in Section 35,
Article V of R.A. No. 10591.[38] The dispositive portion of the Joint Judgment reads:

WHEREFORE, premises considered, the charge under Crim. Case No. 2014-831 is

DISMISSED.

In Crim. Case No. 2014-830, this Court finds proof beyond reasonable doubt to find the
accused GUILTY. The accused therefore is meted a penalty of imprisonment
of Reclusion Perpetua. He is credited of (sic) the period that he is under preventive
detention.

The following are forfeited and confiscated in favor to (sic) the government:

1. One (1) Fuze M204A2 Grenade; and

2. One (1) Caliber .25 Pistol (Replica).

SO ORDERED.[39] (italics supplied)

The CA Ruling

On April 6, 2017, the CA rendered a decision[40] affirming the ruling in Crim. Case No.
2014-830 of the RTC, ratiocinating that: (a) accused-appellant never questioned the
legality of his arrest until his appeal;[41] (b) accused-appellant was validly arrested and
searched without a warrant as he was caught attempting to commit a robbery, making the
hand grenade admissible in evidence as it was validly obtained;[42] (c) all the elements of
the offense were adequately proven by the prosecution;[43] (d) the defenses of bare denial
or frame-up are invariably viewed by courts with disfavor for they can easily be
concocted;[44] (e) it does not matter if the fuse assembly marking on the grenade, as stated
in the information (Criminal Case No. 2014-830), differs from that stated in the arresting
officers' judicial affidavits; the alleged discrepancy being "clearly a clerical error" as
supported by other documentary evidence (July 28, 2014 Certification, Seizure Receipt,
and Extract Blotter), thereby justifying the amendment of the information;[45] (f) the
identity of the grenade from the accused-appellant was not compromised even if the
marking "RMI2" was not on the same grenade presented before the RTC; the prosecution
adequately explained that the chain of custody remained unbroken as testified by all
witnesses; (g) that the masking tape containing the same marking had been "removed
and/or overlapped" with another strip of masking tape as per the July 28, 2014
Certification;[46] and (h) the RTC's assessment of the credibility of a witness is entitled to
great weight and, sometimes, even finality which the appellate courts should not disturb
because the trial judge had personally heard and observed the demeanor of the witnesses.
The decretal portion of the CA decision reads, thus:

WHEREFORE, the conviction of the accused-appellant for the offense charged in

Criminal Case No. 2014-830 in the assailed Joint Judgment dated 27 January 2016
rendered by the Regional Trial Court, Branch 21 of Cagayan de Oro City is hereby
AFFIRMED.

SO ORDERED.[47]

Hence, this appeal.

In its Resolution,[48] dated September 25, 2017, the Court required both parties to file their
respective supplemental briefs, if they so desired.

On December 21, 2017, the Office of the Solicitor General, in its Manifestation and
Motion,[49] opted the brief it filed before the CA as its supplemental brief. Accused-
appellant, on the other hand, filed his Manifestation in lieu of Supplemental Brief,
[50]
 stating that he is adopting in toto appellant's brief filed before the CA as it sufficiently
and ably discussed the issues in the present case.

In his brief, accused-appellant presented the following arguments:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE ARREST OF

ACCUSED-APPELLANT WAS LAWFUL.

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-

APPELLANT OF THE OFFENSE CHARGED NOTWITHSTANDING THE FAILURE
OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.[51]
 Parties' Arguments

Accused-appellant, who adopted his brief before the CA,[52] insists that: (a) his arrest was
illegal because PO2 Intud and PO2 Monilar merely assumed that he was "Boy Solo"
based on CCTV footages and that "[o]ne cannot, without a warrant, arrest anyone based
on similarities of [p]hysical attributes;"[53] (b) "[a] waiver of an illegal warrantless arrest
does not carry with it a waiver of the inadmissibility of evidence seized during the illegal
warrantless arrest;"[54] (c) the corpus delicti is doubtful because, when the subject hand
grenade was presented in court, the marking "RJVII2" was not found on it and the fuse
assembly marking stated in the original information did not match the grenade's serial
number;[55] and (d) the RTC should not have allowed the amendment of the original
information to change the fuse assembly marking from "M204X2" to "M204A2" because
it "affects the very identity of the grenade" and, thus, is clearly prejudicial to the accused.
[56]

On the other hand, the prosecution argues that accused-appellant was lawfully arrested
and searched without a warrant because he was caught in the act of pulling out a firearm,
even if it turned out to be a mere replica. Such act, absent any provocation, would pose an
imminent danger to the people in the vicinity.[57] The prosecution's witnesses (PO2 Intud,
PO2 Monilar, SPO1 Tiongson, and SPO2 Radaza), who have held or in any manner dealt
with the hand grenade, clearly testified as to the manner of its handling and the unbroken
chain of custody.[58] It has already been clarified that the discrepancy as to the markings
on the grenade's fuse assembly, "M204X2" and "M204A2," in both the original and
amended informations as well as in the judicial affidavits, was merely a clerical error
brought about by a misreading of the handwritten inventory of the confiscated items. This
had been duly corrected with the permission of the RTC to conform to the evidence
presented during trial.[59] Accused-appellant's unsubstantiated defenses of denial, frame-
up, and alibi are weak and have been invariably viewed by the courts with disfavor.
[60]
 Lastly, accused-appellant failed to present any ill motive on the part of the police
officers who arrested him. Neither did he file any case against them for alleged frame-up
and torture.[61]

ISSUES

The issues for the Court's resolution are:

WHETHER THE WARRANTLESS ARREST IS VALID AND THE HAND

GRENADE SEIZED FROM ACCUSED-APPELLANT IS ADMISSIBLE IN
EVIDENCE;
WHETHER THE ORIGINAL INFORMATION COULD BE VALIDLY AMENDED
BY THE PROSECUTION TO REFLECT THE PROPER MARKING INSCRIBED ON
THE HAND GRENADE'S FUSE ASSEMBLY;

WHETHER THE IDENTITY AND INTEGRITY OF THE CORPUS DELICTI HAVE

BEEN COMPROMISED CAUSING ACCUSED-APPELLANT'S GUILT TO BE
TAINTED WITH REASONABLE DOUBT.

THE COURT'S RULING

Legality of the Warrantless Arrest

A person may be validly arrested without warrant, as provided under Section 5, Rule 113
of the Revised Rules of Criminal Procedure, viz.:

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe, based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and 
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail and shall be proceeded
against in accordance with section 7 of Rule 112. (emphases supplied)

The first instance in Sec. 5 of Rule 113, on which the subject arrest was premised, is
known as an in flagrante delicto arrest where the accused was caught in the
act or attempting to commit, already committing or having committed an offense. For a
warrantless arrest of in flagrante delicto to be effected, two elements must concur: (a) the
person to be arrested must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (b) such overt act is done in
the presence or within the view of the arresting officer.[62] Failure to comply with the
overt act test renders an in flagrante delicto arrest constitutionally infirm.[63]
The concept of in flagrante delicto arrests should not be confused with warrantless
arrests based on probable cause as contemplated in the second instance of Sec. 5 of
Rule 113. In the latter type of warrantless arrest, an accused may be arrested when there
is probable cause which is discernible by a peace officer or private person that an offense
"has just been committed." Here, the offense had already been consummated but not in
the presence of the peace officer or private person who, nevertheless, should have
personal knowledge of facts or circumstances that the person to be arrested had
committed it. More importantly, there is durational immediacy between the offense that
had just been committed and the peace officer or private person's perception or
observation of the accused's presence at the incident or immediate vicinity. Such is why
probable cause is required to justify a warrantless arrest in cases where the peace officer
or private person did not catch or witness the accused in the act of committing an
offense.

"Probable cause" (in the context of warrantless arrests) has been understood to mean a
reasonable ground of suspicion supported by circumstances sufficiently strong to
warrant a cautious man's belief that the person accused is guilty of the offense with which
he is charged.[64] While probable cause to justify a warrantless arrest is required only in
instances where the peace officer or private person who was present only at the time
when the offense was committed believes (based on his/her immediate perception) that an
offense had just been committed, some of its yardsticks for determination may be of
help in ascertaining whether an accused is attempting  to commit an offense. This is
because the probable cause needed to justify a warrantless arrest ordinarily involves a
certain degree of suspicion, in the absence of actual belief of the arresting officers, that
the person to be arrested is probably guilty of committing the offense based on actual
facts.[65] And such determination of reasonable suspicion "must be based on
commonsense judgments and inferences about human behavior."[66]

Under the circumstances, PO2 Intud and PO2 Monilar had a reasonable suspicion to
arrest accused-appellant who was seen to have drawn a gun as he was about to enter
LBC. Common sense dictates that police officers need not wait for a serious crime, such
as robbery, to be consummated before they move in and make the arrest because it will
definitely endanger the lives and safety of the public, as well as their own. This is
consistent with the jurisprudential dictum that the obligation to make an arrest by reason
of a crime does not presuppose, as a necessary requisite for the fulfillment thereof, the
indubitable existence of a crime.[67] Moreover, even if the firearm drawn turned out to be
a replica, the police officers were not expected to know on sight whether the firearm was
genuine or not, considering they had only a split second to act on any indication of
danger. What was necessary was the presence of reasonably sufficient ground to
believe the existence of an act having the characteristics of a crime; and that the same
grounds exist to believe that the person sought to be detained participated in it. [68] As a
result of the validity of the accused-appellant's warrantless arrest, the incidental search
and seizure of the items in his possession is also valid "to protect the arresting officer
from being harmed by the person arrested and to prevent the latter from destroying
evidence within reach."[69]

Additionally, accused-appellant's argument that the CCTV footage cannot be considered

as a valid basis for his arrest fails to persuade. While it is a long-standing rule that
reliable information alone (such as footage from a CCTV recording) is not sufficient to
justify a warrantless arrest, the rule only requires that the accused perform some overt act
that would indicate that he has committed, is actually committing, or is attempting to
commit an offense.[70] Therefore, it does not matter that accused-appellant was previously
identified only from a CCTV footage supposedly covering his previous criminal conduct
because he was seen by PO2 Intud and PO2 Monilar performing an overt act of
drawing a gun as he was about to enter LBC.

Further, the assessment of the credibility of witnesses is within the province of the trial
court by virtue of its unique position to observe the crucial and often incommunicable
evidence of the witnesses' deportment while testifying, something which is denied to the
appellate court because of the nature and function of its office.[71] To be able to rebut a
trial court's assessments and conclusions as to credibility, substantial reasons must be
proffered by the accused.[72] Relatedly, when it is decisive of the guilt or innocence of the
accused, the issue of credibility is determined by the conformity of the conflicting claims
and recollections of the witnesses to common experience and to the observation of
mankind as probable under the circumstances.[73]

Here, accused-appellant failed to rebut with affirmative evidence the testimonies of PO2
Intud and PO2 Monilar that he was caught in the act of drawing a gun as he was about to
enter LBC. He never substantiated his claim, save for his self-serving account, that he
was arrested without any reason. Moreover, the arresting officers' credibility was
reinforced even more with their consistent corroborating statements under intense cross-
examination. This reinforces the oft-repeated principle that trial courts are in the best
position to weigh the evidence presented during trial and to ascertain the credibility of the
police officers who testified.[74] Thus, the CA and the RTC properly gave more weight to
the positive testimonies of the prosecution's witnesses over accused-appellant's defenses
of denial and frame-up because these remained consistent even under the crucible of
cross-examination.

At any rate, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after a trial free from error; and will not
even negate the validity of the conviction of the accused.[75] The legality of an arrest
affects only the jurisdiction of the court over the person of the accused. [76] Furthermore,
"[i]t is much too late in the day to complain about the warrantless arrest after a valid
information had been filed, the accused arraigned, trial commenced and completed, and a
judgment of conviction rendered against him."[77] It has been ruled time and again that an
accused is estopped from assailing any irregularity with regard to his arrest if he fails to
raise this issue or to move for the quashal of the information against him on this
ground before his arraignment.[78] Besides, only those pieces of evidence obtained after
an unreasonable search and seizure are inadmissible in evidence for any purpose in any
proceeding.[79]

In this case, accused-appellant failed to timely question the illegality of his arrest and to
present evidence (or at least some reasonable explanation) to substantiate his alleged
wrongful detention. This renders the warrantless arrest and the accompanying search
valid; thus, affirming the RTC's jurisdiction over his person and making all the items,
confiscated from accused-appellant, admissible in evidence. Hence, the CA did not err in
affirming the RTC's validation of accused-appellant's warrantless arrest and incidental
search.

Validity of the Amended Information

I. Amendment of am Information

No less than the Constitution guarantees the right of every person accused in a criminal
prosecution to be informed of the nature and cause of accusation against him/her. [80] In
this regard, every element constituting the offense must be alleged in the information to
enable the accused to suitably prepare his/her defense.[81] This is because an accused is
presumed to have no independent knowledge of the facts that constitute the offense.
[82]
 Hence, the right to be informed of the nature and cause of
accusation is not transgressed if the information sufficiently alleges
facts and omissions constituting an offense that includes the offense established to
have been committed by the accused.[83]

Moreover, Sec. 14, Rule 110 of the Rules of Court provides that "[a] complaint or
information may be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea[;] [a]fter the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused."[84] As deduced from the foregoing rule,
there are two kinds of amendments to an information: (a) substantial amendments,
and (b) formal amendments.

To date, there is no precise definition of what constitutes a substantial amendment;

[85]
 although it was held that "it consists of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court"[86]—all other matters are
merely of form.[87] As to formal amendments, the Court first held in People v. Casey, et
al.[88] that an amendment is merely formal and not substantial if: (a) it does not change
the nature of the crime alleged therein; (b) it does not expose the accused to a charge
which could call for a higher penalty; (c) it does not affect the essence of the offense; or
(d) it does not cause surprise or deprive the accused of an opportunity to meet the new
averment. Moreover, the following have also been held to be mere formal
amendments, viz: (a) new allegations which relate only to the range of the penalty that
the court might impose in the event of conviction; (b) an amendment which does not
charge another offense different or distinct from that charged in the original one; (c)
additional allegations which do not alter the prosecution's theory of the case so as to
cause surprise to the accused and affect the form of defense he has or will assume; (d)
an amendment which does not adversely affect any substantial right of the accused;
and (e) an amendment that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and merely states
with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime charged.[89]

Notwithstanding the contrast between substantial and formal amendments, substantial

amendments to the information are even permissible as long as the requirements of due
process—that the accusation be in due form and the accused be given notice and an
opportunity to answer the charge—are complied with.[90] Therefore, the Court will have to
determine and explain in the succeeding discussions whether the amendment to the
subject information was formal or substantial and whether such amendment either
complied with or violated the requirements of due process.

II. Elements of Illegal Possession of Firearms,

Explosives, Ammunitions or Incendiary
Devices

The essential elements in the prosecution for the crime of illegal possession of firearms,
which include explosives, ammunitions or incendiary devices,[91] are: (a) the existence of
subject firearm, and (b) the fact that the accused who possessed or owned the same does
not have the corresponding license for it.[92] Associated with the essential elements of the
crime, the term "corpus delicti" means the "body or substance of the crime and, in its
primary sense, refers to the fact that the crime has been actually committed." [93] Its
elements are: (a) that a certain result has been proved (e.g., a man has died); and (b) that
some person is criminally responsible for the act.[94] In the crime of illegal possession of
firearms, the corpus delicti is the accused's lack of license or permit to possess or
carry the firearm, as possession itself is not prohibited by law.[95] To establish the corpus
delicti, the prosecution has the burden of proving that the firearm exists and that the
accused who owned or possessed it does not have the corresponding license or permit to
possess or carry the same.[96] However, even if the existence of the firearm must be
established, the firearm itself need not be presented as evidence for it may be established
by testimony, even without the presentation of the said firearm.[97]

III. Propriety of the Amendments

Before delving into the propriety of amending the original information, the Court clarifies
and takes discretionary[98] judicial notice[99] of the fact that different models of detonating
fuses used in hand grenade assembly are available in the market. These detonating fuses
include the following models: M204A1, M204A2, M206A2, M213, M228, and the C12
integral fuse (to date, there is no known fuse assembly model denominated as
"M204X2").[100] It means that the marking denominated as "M204A2" on the fuse
assembly of the subject grenade does not refer to the serial number—it pertains to the
model number. This was explained by SPO2 Tingson during his cross-examination[101] by
accused-appellant's counsel Atty. Arturo B. Jabines, III (Atty. Jabines), viz.:

[Atty. Jabines, III:] Mr. Witness, you testified that you recognize the grenade as the same
grenade received by you at the police station at Divisoria because of the
markings RMI2, is that correct?
[SPO2 Tingson:] Yes.
[Atty. Jabines, III:] And no serial number of the grenade was recorded?
[SPO2 Tingson:] All the unexploded ordnance [have] no serial number, the fuse
assembly like the one mentioned by the police station (sic) that it was
a[n] M204A2[;] it is the fuse assembly marking and not a serial number,
(emphasis supplied)

Having settled that the marking "M204A2" on the fuse assembly of the grenade
is not a serial number, the Court addresses the question: Is the amendment of the hand
grenade's model, as stated in the original information, substantial?

The Court answers in the negative.

Accused-appellant's bone of contention as to the markings on the hand grenade's fuse

assembly is the discrepancy alleged in both the original and amended informations.
Purportedly, this casts doubt on the source and negates the existence of the contraband.
However, it is simply not enough to invalidate the amended information. A casual
appreciation of the allegations in the original and amended informations immediately
shows that accused-appellant had been carrying a hand grenade without a corresponding
license; such effectively covering all the elements of the crime of illegal possession of an
explosive device. It does not matter whether the model of the grenade's fuse assembly
was inaccurately alleged in the original information. The same argument still supports the
conclusion that the questioned amendment does not prejudice accused-appellant's rights;
it does not: (a) charge another offense different or distinct from the charge of illegal
possession of an explosive averred in the original information; (b) alter the prosecution's
theory of the case that he was caught possessing a hand grenade without a license or
permit so as to cause him surprise and affect the form of defense he has or will assume;
(c) introduce new and material facts; and (d) add anything which was essential for
conviction. In effect, the assailed amendment which reflected the correct model of the
subject hand grenade merely added precision to the factual allegations already
contained in the original information. Besides, a change of the subject marking from
"M204X2" to "M204A2" is an obvious correction of a clerical error—one which is
visible to the eye or obvious to the understanding; an error made by a clerk or a
transcriber; or a mistake in copying or writing.[102] Accordingly, any amendment as to the
discrepancy in the description of an element alleged in the information is evidentiary in
nature and only amounts to a mere formal amendment.

Even assuming that the model number on the hand grenade is among the elements of
illegal possession of explosives, it may still be amended under the circumstances because
accused-appellant was still afforded due process when he was apprised in the
information that he was being indicted for illegally possessing a hand grenade; the
model number, even the serial number, being immaterial. The allegations in the original
and amended informations sufficiently cover the element of the contraband's existence as
well as accused-appellant's lack of license to possess the same.

At this juncture, the Court stresses that the truth or falsity of the allegations in the
information are threshed out during the trial. The matters contained in an information are
allegations of ultimate facts which the prosecution has to prove beyond reasonable doubt
to achieve a verdict of conviction. Conversely, an accused needs to rebut or at least
equalize these matters by countervailing evidence in order to secure an acquittal. An
accused cannot be allowed to seek an invalidation of the amended information, just
because the information clarified one of the elements alleged inadvertently misstated by
the prosecution in the original information. Hence, the RTC's act of permitting the
amendment of the subject information, as affirmed by the CA, is permissible.

Admissibility of the Hand Grenade

I. Classifications of Object Evidence

Object evidence is classified into: (a) actual, physical or "autoptic"[103] evidence: those

which have a direct relation or part in the fact or incident sought to be proven and those
brought to the court for personal examination by the presiding magistrate; and
(b) demonstrative evidence: those which represent the actual or physical object (or
event in the case of pictures or videos) being offered to support or draw an inference or to
aid in comprehending the verbal testimony of a witness.[104] Further, actual evidence is
subdivided into three categories: (a) those that have readily identifiable marks (unique
objects); (b) those that are made readily identifiable (objects made unique) and (c) those
with no identifying marks (non-unique objects).[105]

During the initial stage of evidence gathering, the only readily available types of actual
evidence reasonably obtainable by law enforcers are unique objects and non-unique
objects. On one hand, unique objects either: (a) already exhibit identifiable visual or
physical peculiarities such as a particular paint job or an accidental scratch, dent, cut,
chip, disfigurement or stain; or (b) have a readily distinguishable mark such as a unit-
specific serial number in case of an industrially manufactured item. On the other hand,
non-unique objects such as narcotic substances, industrial chemicals, and body fluids
cannot be distinguished and are not readily identifiable; that is why they present an
inherent problem of fungibility[106] or substitutability and contamination which adversely
affects their relevance or probative value. This is the reason why non-unique objects have
to be made unique by law enforcers upon retrieval or confiscation in order for these
articles to be authenticated by a sponsoring witness so that trial and reviewing courts can
determine their relevance or probative value.

II. Authentication of Object Evidence

In its previous rulings, the Court had sought the guidance of U.S. courts in interpreting or
explaining the rational basis underlying this jurisdiction's evidentiary principles. Some
provisions of the Philippine Rules on Evidence (Rules on Evidence) were derived from or
bear some semblance to some provisions of the Federal Rules of Evidence (Federal
Rules). In this regard, Rule 902(a) of the Federal Rules pertaining to authentication and
identification provides:

(a) In General. To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.

Admittedly, the practice of testimonial sponsorship of object evidence in the Federal

Rules is not specifically mentioned in the Rules on Evidence. Nothing in the Rules on
Evidence deals with the authentication of object evidence during the trial. Apart from the
requirement of formal offer,[107] however, such practice is part and parcel of having an
object evidence admitted, because authenticity is an inherent attribute of relevance—a
component of admissibility.[108] The obvious reason is that an object offered in court as
evidence but without having any part in the fact or event sought to be proven by the
proponent is irrelevant because it has no "relation to the fact in issue as to induce a belief
in its existence or nonexistence."[109]

Relatedly, the Court promulgated the Judicial Affidavit Rule[110] which mandates parties
to file, not later than five days before pre-trial or preliminary conference, judicial
affidavits executed by their witnesses which shall take the place of their direct
testimonies.[111] Here, parties seeking to offer documentary and/or object evidence are
now required to describe, authenticate, and make the same evidence form part of the
witness' judicial affidavit under the said Rule.[112] Therefore, as a rule, object evidence
now requires authentication or testimonial sponsorship before it may be admitted or
considered by the court.

Historically, the Court has applied the "chain of custody" rule as a mode of authenticating
illegal drug substances in order to determine its admissibility.[113] However, such rule has
not yet been extended to other substances or objects for it is only a variation of the
principle that real evidence must be authenticated prior to its admission into evidence.
[114]
 At this point, it becomes necessary to point out that the degree of
fungibility of amorphous objects without an inherent unique characteristic capable of
scientific determination, i.e., DNA testing, is higher than stably structured objects or
those which retain their form because the likelihood of tracing the former objects' source
is more difficult, if not impossible. Narcotic substances, for example, are relatively easy
to source because they are readily available in small quantities thereby allowing the buyer
to obtain them at lower cost or minimal effort. It makes these substances highly
susceptible to being used by corrupt law enforcers to plant evidence on the person of a
hapless and innocent victim for the purpose of extortion. Such is the reason why narcotic
substances should undergo the tedious process of being authenticated in accordance with
the chain of custody rule.

In this regard, the Court emphasizes that if the proffered evidence is unique, readily
identifiable, and relatively resistant to change, that foundation need only consist of
testimony by a witness with knowledge that the evidence is what the proponent claims;
[115]
 otherwise, the chain of custody rule has to be resorted to and complied with by the
proponent to satisfy the evidentiary requirement of relevancy. And at all times,
the source of amorphous as well as firmly structured objects being offered as
evidence must be tethered to and supported by a testimony. Here, the determination
whether a proper foundation has been laid for the introduction of an exhibit into evidence
refits within the discretion of the trial court; and a higher court reviews a lower court's
authentication ruling in a deferential manner, testing only for mistake of law or a clear
abuse of discretion.[116] In other words, the credibility of authenticating witnesses is for
the trier of fact to determine.[117]

In the case at hand, the chain of custody rule does not apply to an undetonated
grenade (an object made unique), for it is not amorphous and its form is relatively
resistant to change. A witness of the prosecution need only identify the hand grenade, a
structured object, based on personal knowledge that the same contraband or article is
what it purports to be—that it came from the person of accused-appellant. Even
assuming arguendo that the chain of custody rule applies to dispel supposed doubts as to
the grenade's existence and source, the integrity and evidentiary value of the explosive
had been sufficiently established by the prosecution. As aptly observed by the CA:

As previously stated, PO2 Intud, SPO2 Radaza and SPO2 Tingson positively testified as
to the integrity and evidentiary value of the grenade presented in court, marked as Exhibit
"B-1." PO2 Intud testified that it is the same grenade confiscated from the accused-
appellant at the time of his arrest. SPO2 Radaza testified that it is the same grenade
turned over [to] him by PO2 Intud. SPO2 Tiongson testified that it is the same grenade
turned over to him by SPO2 Radaza. Thus, there is no break in the chain of custody of the
grenade confiscated from the accused-appellant.

As to the absence of the marking "RMI2" which was placed by PO2 Intud on the grenade
marked as Exhibit "B-l," the same does not affect the evidentiary value of said object
evidence. Said marking was placed by PO2 Intud on the grenade before it was turned
over to the PNP[-] EOD for examination, as shown by the Acknowledgement Receipt
dated 23 July 2014 prepared by SPO2 Radaza and duly received by SPO2 Tingson.
However, after the examination conducted by the PNP[-]EOD where it was determined
that the grenade had "Safety Pull Ring, Safety Pin, Safety Lever intact and containing
COMP B (Co[m]position B) as Explosive Filler," the masking tape containing the
marking "RMI2" was apparently removed and/or "overlapped" with another masking
tape. As such, the Certification dated 28 July 2014 issued by SPO2 Tingson of the EOD
Team no longer reflected the "RMI2" marking on the grenade. In any event, what is
crucial is the testimony of SPO2 Tingson that the grenade marked as Exhibit "B-l" is the
same grenade turned over to him by SPO2 Radaza.[118]

The above factual finding clearly shows that the source and existence of the subject
grenade were authenticated by the prosecution's witness to be the very same explosive
recovered from accused-appellant. SPO2 Radaza even testified that he saw PO2 Intud
write his initials "RMI2" on the masking tape used to wrap the grenade and that the same
initials were covered by another masking tape.[119] This makes accused-appellant's claim,
that the apparent absence of the masking tape wrapping the hand grenade bearing the
inscription "RMI2" makes "very doubtful" the corpus delicti,[120] an exercise in futility.

The Court also deems noteworthy that accused-appellant never presented any

evidence which would effectively taint PO2 Intud's or any other prosecution
witnesses' credibility with reasonable doubt. Bare and unsubstantiated allegations of ill
motive or impropriety[121] have no probative value and cannot (and will not) take the place
of evidence.[122] In this instance, the presumption that the prosecution's witnesses have
been regularly performing their official duty should be upheld absent any clear and
convincing evidence of ill motive.[123]

Conclusion

In fine, the Court finds no reversible error in the CA's decision because: (a) the
warrantless arrest as well as the incidental search on the person of accused-appellant is
valid; (b) the amendment of the original information seeking the correction of a clerical
error regarding the model of the illegally possessed grenade is merely evidentiary in
nature and is not substantial to cause the invalidation of an amended information; and (c)
the prosecution's witnesses have sufficiently laid down the testimonial foundations
supporting the existence and confirming the source of the confiscated hand grenade.

WHEREFORE, in view of the foregoing, the Court DISMISSES the appeal of Herofil

N. Olarte and AFFIRMS the April 6, 2017 Decision of the Court of Appeals in CA-G.R.
CR-HC No. 01501-MIN.

No costs.

SO ORDERED.

EN BANC
[ G.R. No. 217158, March 12, 2019 ]
GIOS-SAMAR, INC., REPRESENTED BY ITS CHAIRPERSON GERARDO
M. MALINAO, PETITIONER, VS. DEPARTMENT OF TRANSPORTATION
AND COMMUNICATIONS AND CIVIL AVIATION AUTHORITY OF THE
PHILIPPINES, RESPONDENTS.

DECISION

JARDELEZA, J.:

The 1987 Constitution and the Rules of Court promulgated, pursuant to its provisions,
granted us original jurisdiction over certain cases. In some instances, this jurisdiction is
shared with Regional Trial Courts (RTCs) and the Court of Appeals (CA). However,
litigants do not have unfettered discretion to invoke the Court's original jurisdiction. The
doctrine of hierarchy of courts dictates that, direct recourse to this Court is allowed only
to resolve questions of law, notwithstanding the invocation of paramount or
transcendental importance of the action. This doctrine is not mere policy, rather, it is a
constitutional filtering mechanism designed to enable the Court to focus on the more
fundamental and essential tasks assigned to it by the highest law of the land.

On December 15, 2014, the Department of Transportation and Communication[1] (DOTC)

and its attached agency, the Civil Aviation Authority of the Philippines (CAAP), posted
an Invitation to Pre-qualify and Bid[2] (Invitation) on the airport development, operations,
and maintenance of the Bacolod-Silay, Davao, Iloilo, Laguindingan, New Bohol
(Panglao), and Puerto Princesa Airports (collectively, Projects).[3] The total cost of the
Projects is P116.23 Billion, broken down as follows:[4]
Bacolod-Silay P20.26 Billion 
Davao P40.57 Billion 
Iloilo P30.4 Billion  
Laguindingan P14.62 Billion 
New Bohol
P4.57 Billion  
(Panglao)
Puetio
P5.81 Billion  
Princesa
P116.23
   
Billion[5]
The Invitation stated that the Projects aim to improve services and enhance the airside
and landside facilities of the key regional airports through concession agreements with
the private sector. The Projects will be awarded through competitive bidding, following
the procurement rules and procedure prescibed under Republic Act (RA) No. 6957, [6] as
amended by RA No. 7718[7] (BOT Law), and its Implementing Rules and Regulations.
The concession period would be for 30 years.[8]

On March 10, 2015, the DOTC and the CAAP issued the Instructions to Prospective
Bidders (ITPB),[9] which provided that prospective bidders are to pre-qualify and bid for
the development, operations, and maintenance of the airports, which are now bundled
into two groups (collectively, the Bundled Projects), namely:
Bundle 1: Bacolod-Silay and Iloilo
Bundle 2: Davao, Laguindingan, and New Bohol
(Panglao)[10]
The costs of Bundle 1 and Bundle 2 are P50.66 Billion and P59.66 Billion, respectively.
The Puerto Princesa Airport project was not included in the bundling.[11]

The general procedure for the bidding of the Bundled Projects stated that "[p]rospective
[b]idders may bid for only Bundle 1 or Bundle 2, or bid for both Bundle 1 and Bundle 2.
x x x The [Pre-Qualification, Bids and Awards Commitee (PBAC)] shall announce in a
Bid Bulletin prior to the Qualifications Submission Date[,] its policy on whether a
[p]rospective [b]idder may be awarded both bundles or whether a [p]rospective [b]idder
may only be awarded with one (1) bundle."[12]

The submission of the Pre-Qualification Queries was scheduled for April 3, 2015 and the
submission of Qualification Documents on May 18, 2015.[13]

On March 27, 2015, petitioner GIOS-SAMAR, Inc., represented by its Chairperson

Gerardo M. Malinao (petitioner), suing as a taxpayer and invoking the transcendental
importance of the issue, filed the present petition for prohibition.[14] Petitioner alleges that
it is a non-governmental organization composed of subsistence farmers and fisherfolk
from Samar, who are among the victims of Typhoon Yolanda relying on government
assistance for the rehabilitation of their industry and livelihood.[15] It assails the
constitutionality of the bundling of the Projects and seeks to enjoin the DOTC and the
CAAP from proceeding with the bidding of the same.

Petitioner raises the following arguments:

First, the bundling of the Projects violated the "constitutional prohibitions on the anti-
dummy and the grant of opportunity to the general public to invest in public
utilities,"[16] citing Section 11, Article XII of the 1987 Constitution.[17] According to
petitioner, bundling would allow companies with questionable or shaky financial
background to have direct access to the Projects "by simply joining a consortium which
under the bundling scheme adopted by the DOTC said [P]rojects taken altogether would
definitely be beyond the financial capability of any qualified, single Filipino
corporation."[18]

Second, bundling violates the constitutional prohibition on monopolies under Section 19,
Article XII of the Constitution because it would allow one winning bidder to operate and
maintain several airpm1s, thus establishing a monopoly. Petitioner asserts that, given the
staggering cost of the Bundled Projects, the same can only be undertaken by a group,
joint venture outfits, and consortiums which are susceptible to combinations and schemes
to control the operation of the service for profit, enabling a single consortium to control
as many as six airports.[19]

Third, bundling will "surely perpetrate an undue restraint of trade."[20] Mid-sized Filipino

companies which may have previously considered participating in one of the six (6)
distinct Projects will no longer have a realistic opportunity to participate in the bidding
because the separate projects became two (2) gargantuan projects. This effectively placed
the Projects beyond the reach of medium-sized Filipino companies.[21]

Fourth, the PBAC of the DOTC committed grave abuse of discretion amounting to excess
of jurisdiction when it bundled the projects without legal authority.[22]

Fifth, bundling made a mockery of public bidding because it raised the reasonable bar to
a level higher than what it would have been, had the projects been bidded out separately.
[23]

In support of petitioner's prayer, for the issuance of a temporary restraining order and/or
writ of preliminary injunction, it states that there is extreme urgency to enjoin the bidding
of the Bundled Projects so as not to cause irreparable damage and injury to the coffers of
the government.[24]

In its comment,[25] the DOTC counters that: (1) the petition is premature because there has
been no actual bidding yet, hence there is no Justiciable controversy to speak of; (2)
petitioner has no legal standing to file the suit whether as a taxpayer or as a private
individual; (3) petitioner's allegation on the violation of anti-dummy and equal
opportunity clauses of the Constitution are speculative and conjectural; (4) Section 11,
Article XII of the Constitution is not applicable to the bidding process assailed by
petitioner; (5) the bundling of the Projects does not violate the prohibitions on
monopolies or combinations in restraint of trade; and (6) the DOTC and the CAAP did
not commit grave abuse of discretion amounting to lack or excess of jurisdiction.[26]

For its part, the CAAP asserts that the petition violated the basic fundamental principle of
hierarchy of courts. Petitioner had not alleged any special and compelling reason to allow
it to seek relief directly from the Court. The case should have been filed with the trial
court, because it raises factual issues which need to be threshed out in a full-blown trial.
[27]
 The CAAP also maintains that petitioner has neither legal capacity nor authority to file
the suit and that the petition has no cause of action.[28]

In its reply,[29] petitioner argues that it need not wait for the conduct of the bidding to file
the suit because doing so would render useless the very purpose for filing the petition for
prohibition.[30] As it is, five groups have already been pre-qualified to bid in the Bundled
Projects.[31] Petitioner also submits that direct recourse to this Court is justified as the
"matter of prohibiting the bidding process of the x x x illegally bundled projects are
matters of public interest and transcendental importance."[32] It further insists that it has
legal standing to file the suit through Malinao, its duly authorized representative.[33]

The main issue brought to us for resolution is whether the bundling of the Projects is
constitutional.

Petitioner argues that the bundling of the Projects is unconstitutional because it will: (i)
create a monopoly; (ii) allow the creation and operation of a combination in restraint of
trade; (iii) violate anti-dummy laws and statutes giving citizens the opportunity to invest
in public utilities; and (iv) enable companies with shaky financial backgrounds to
participate in the Projects.

While petitioner asserts that the foregoing arguments involve legal (as opposed to factual)
issues, our examination of the petition shows otherwise. As will be demonstrated shortly,
petitioner's arguments against the constitutionality of the bundling of the Projects are
inextricably intertwined with underlying questions of fact, the determination of which
require the reception of evidence. This Court, however, is not a trier of fact. We cannot
resolve these factual issues at the first instance. For this reason, we DISMISS the
petition.

Petitioner claims that the bundling of the Projects violates the constitutional provisions on
monopolies and combinations in restraint of trade under Section 19, Article XII of the
Constitution, which reads:
Sec. 19. The State shall regulate or prohibit monopolies while the public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.
In Tatad v. Secretary of the Department of Energy,[34] we clarified that the Constitution
does not prohibit the operation of monopolies per se.[35] With particular respect to the
operation of public utilities or services, this Court, in Anglo-Fil Trading Corporation v.
Lazaro,[36] further clarified that "[b]y their very nature, certain public services or public
utilities such as those which supply water, electricity, transportation, telephone,
telegraph, etc. must be given exclusive franchises if public interest is to be served. Such
exclusive franchises are not violative of the law against monopolies."

In short, we find that the grant of a concession agreement to an entity, as a winning

bidder, for the exclusive development, operation, and maintenance of any or all of the
Projects, does not by itself create a monopoly violative of the provisions of the
Constitution. Anglo-Fil Trading Corporation teaches that exclusivity is inherent in the
grant of a concession to a private entity to deliver a public service, where Government
chooses not to undertake such service.[37] Otherwise stated, while the grant may result in a
monopoly, it is a type of monopoly not violative of law. This is the essence of the policy
decision of the Government to enter into concessions with the private sector to build,
maintain and operate what would have otherwise been government-operated services,
such as airports. In any case, the law itself provides for built-in protections to safeguard
the public interest, foremost of which is to require public bidding. Under the BOT Law,
for example, a private-public pat1nership (PPP) agreement may be undertaken through
public bidding, in cases of solicited proposals, or through "Swiss challenge" (also known
as comparative bidding), in cases of unsolicited proposals.

In any event, the Constitution provides that the State may, by law, prohibit or regulate
monopolies when the public interest so requires.[38] Petitioner has failed to point to any
provision in the law, which specifically prohibits the bundling of bids, a detail supplied
by the respondent DOTC as implementing agency for the PPP program for airpm1s. Our
examination of the petition and the relevant statute, m fact, provides further support for
the dismissal of the present action.

Originally, monopolies and combinations in restraint of trade were governed by, and
penalized under, Article 186[39] of the Revised Penal Code. This provision has since been
repealed by RA No. 10667, or the Philippine Competition Act, which defines and
penalizes "all forms of anti-competitive agreements, abuse of dominant position, and
anti-competitive mergers and acquisitions."[40]

RA No. 10667 does not define what constitutes a "monopoly." Instead, it prohibits one or
more entities which has/have acquired or achieved a "dominant position" in a "relevant
market" from "abusing" its dominant position. In other words, an entity is not prohibited
from, or held liable for prosecution and punishment for, simply securing a dominant
position in the relevant market in which it operates. It is only when that entity engages in
conduct in abuse of its dominant position that it will be exposed to prosecution and
possible punishment.

Under RA No. 10667, "dominant position" is defined as follows:

Sec. 4. Definition of Terms. - As used in this Act:

xxxx

(g) Dominant position refers to a position of economic strength that an entity or entities

hold which makes it capable of controlling the relevant market independently from any or
a combination of the following: competitors, customers, suppliers, or consumers[.]
"Relevant market," on the other hand, refers to the market in which a particular good or
service is sold and which is a combination of the relevant product market and the relevant
geographic market.[41] The determination of a particular relevant market depends on the
consideration of factors which affect the substitutability among goods or services
constituting such market, and the geographic area delineating the boundaries of the
market.[42] An entity with a dominant position in a relevant market is deemed to have
abused its dominant position if it engages in a conduct that would substantially prevent,
restrict, or lessen competition.[43]

Here, petitioner has not alleged ultimate facts to support its claim that bundling will
create a monopoly, in violation of the Constitution. By merely stating legal conclusions,
petitioner did not present any sufficient allegation upon which the Court could grant the
relief petitioner prayed for. In Zuñiga-Santos v. Santos-Gran,[44] we held that "[a]
pleading should state the ultimate facts essential to the rights of action or defense
asserted, as distinguished from mere conclusions of fact, or conclusions of law. General
allegations that a contract is valid or legal, or is just, fair, and reasonable, are mere
conclusions of law. Likewise, allegations that a contract is void, voidable, invalid,
illegal, ultra vires, or against public policy, without stating facts showing its invalidity,
are mere conclusions of law."[45] The present action should thus be dismissed on the
ground of failure to state cause of action.[46]

Similarly, RA No. 10667 does not define what a "combination in restraint of trade" is.
What it does is penalize anti-competitive agreements. Agreement refers to "any type of
form or contract, arrangement, understanding, collective recommendation, or concerted
action, whether formal or informal."[47] The following agreements are considered anti
competitive:
Sec. 14. Anti-Competitive Agreements. -

(a) The following agreements, between or among competitors, are per se prohibited:

(1) Restricting competition as to price, or components thereof, or other terms of trade;

(2) Fixing price at an auction or in any form of bidding including cover bidding, bid
suppression, bid rotation and market allocation and other analogous practices of bid
manipulation;

(b) The following agreements, between or among competitors which have the object or
effect of substantially preventing, restricting or lessening competition shall be prohibited:

(1) Setting, limiting, or controlling production, markets, technical development, or

investment;

(2) Dividing or sharing the market, whether by volume of sales or purchases, territory,
type of goods or services, buyers or sellers or any other means;

(c) Agreements other than those specified in (a) and (b) of this section which have the
object or effect of substantially preventing, restricting or lessening competition shall also
be prohibited: Provided, Those which contribute to improving the production or
distribution of goods and services or to promoting technical or economic progress, while
allowing consumers a fair share of the resulting benefits, may not necessarily be deemed
a violation of this Act.

An entity that controls, is controlled by, or is under common control with another entity
or entities, have common economic interests, and are not otherwise able to decide or act
independently of each other, shall not be considered competitors for purposes of this
section.
The bundling of the Projects is an an arrangement made by the DOTC and the CAAP in
the conduct of public bidding. The question that arises is whether the same constitutes an
anti-competitive agreement prohibited by RA No. 10667. However, to resolve this, we
refer to the factors enumerated in Section 26 of RA No. 10667 on the determination of
anti-competitive agreements or conduct:
Sec. 26. Determination of Anti-Competitive Agreement or Conduct. - In determining
whether anti-competitive agreement or conduct has been committed, the Commission
shall:

(a) Define the relevant market allegedly affected by the anti-competitive agreement

or conduct, following the principles laid out in Section 24 of this Chapter;

(b) Determine if there is actual or potential adverse impact on competition in the

relevant market caused by the alleged agreement or conduct, and if such impact is
substantial and outweighs the actual or potential efficiency gains that result from
the agreement or conduct;
(c) Adopt a broad and forward-looking perspective, recognizing future developments, any
overriding need to make the goods or services available to consumers, the requirements
of large investments in infrastructure, the requirements of law, and the need of our
economy to respond to international competition, but also taking account of past
behavior of the parties involved and prevailing market conditions;

(d) Balance the need to ensure that competition is not prevented or substantially restricted
and the risk that competition efficiency, productivity, innovation, or development of
priority areas or industries in the general interest of the country may be deterred by
overzealous or undue intervention; and

(e) Assess the totality of evidence on whether it is more likely than not that the entity has
engaged in anti-competitive agreement or conduct including whether the entity's conduct
was done with a reasonable commercial purpose such as but not limited to phasing out of
a product or closure of a business, or as a reasonable commercial response to the market
entry or conduct of a competitor. (Emphasis supplied.)
Similar to its assertion that bundling will create a monopoly prohibited by law, we find
that petitioner, again, utterly failed to sufficiently state a cause of action, by failing to
plead ultimate facts to support its conclusion that bundling, as an arrangement, is in
restraint of trade or results in unfair competition under the provisions of RA No. 10667.

Even granting that the petition sufficiently pleads a cause of action for the foregoing
violations, there is a need to receive evidence to test the premises of petitioner's
conclusions.

To illustrate, applying the facts and claims relative to the violation of the proscription
against monopolies, what RA No. 10667, in fact, prohibits and punishes is the situation
where: (1) an entity, having been granted an exclusive franchise to maintain and operate
one or more airports, attains a dominant position in that market; and (2) abuses such
dominant position by engaging in prohibited conduct, i.e., acts that substantially prevent,
restrict or lessen competition in market of airport development, operations and
maintenance. Thus, for petitioner to succeed in asserting that such a prohibited situation
legally obtains, it must first establish, by evidence, that indeed: (1) the relevant market is
that of airport development, maintenance, and operation (under the facts-based criteria
enumerated in Section 24 of RA No. 10667); (2) the entity has achieved a dominant
position (under the facts-based criteria enumerated in Section 27 of RA No. 10667) in
that relevant market; and (3) the entity commits acts constituting abuse of dominant
position (under the facts based criteria enumerated in Section 27 of RA No. 10667).

In addition, to support the legal conclusion that bundling is an anti-competitive

agreement, there must be evidence that: (1) the relevant market is that of airport
development, maintenance, and operation (under the facts-based criterion enumerated in
Section 24 of RA No. 10667); (2) bundling causes, or will cause, actual or potential
adverse impact on the competition in that relevant market; (3) said impact is substantial
and outweighs the actual or potential efficiency gains that results from bundling; and (4)
the totality of evidence shows that the winning bidder, more likely than not engaged, in
anti-competitive conduct.

The Court, however, is still not a trier of facts. Petitioner should have brought the
challenge before a tribunal, specially equipped to resolve the factual and legal issues
presented.[48]

We now jointly discuss petitioner's remaining allegations, namely, that bundling of the
Projects: (i) violates the anti-dummy law and the constitutional provision allegedly giving
citizens the opportunity to invest in public utilities; (ii) is in grave abuse of discretion;
and (iii) enables companies with shaky financial backgrounds to participate in the
Projects.

Commonwealth Act No. 108, as amended, otherwise known as the Anti-Dummy Law,
was enacted to limit the enjoyment of certain economic activities to Filipino citizens or
corporations.[49] Section 2 of said law states:
Sec. 2. Simulation of minimum capital stock. - In all cases in which a constitutional or
legal provision requires that, in order that a corporation or association may exercise or
enjoy a right, franchise or privilege, not less than a certain per centum of its capital must
be owned by citizens of the Philippines or of any other specific country, it shall be
unlawful to falsely simulate the existence of such minimum stock or capital as owned by
such citizens, for the purpose of evading said provision. The president or managers and
directors or trustees of corporations or associations convicted of a violation of this section
shall be punished by imprisonment of not less than five nor more than fifteen years, and
by a fine not less than the value of the right, franchise or privilege, enjoyed or acquired in
violation of the provisions hereof but in no case less than five thousand pesos.
For liability for violation of Section 2 to attach, it must first be established that there is a
law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or
business to citizens of the Philippines, or to corporations or associations at least a certain
percentage of which is owned by such citizens.[50] Moreover, it must be shown
by evidence that a corporation or association falsely simulated the existence of the
minimum required Filipino stock or capital ownership to enjoy or exercise the right,
franchise, privilege, or business.

In this case, petitioner failed to allege ultimate facts showing how the bundling of the
Projects violated the Anti-Dummy Law. It did not identify what corporation or
association falsely simulated the composition of its stock ownership. Moreover, it did not
allege that there is a law limiting, reserving, or requiring that infrastructure or
development projects must be awarded only to corporations, a certain percentage of the
capital of which is exclusively owned by Filipinos. Executive Order (EO) No. 65, [51] even
exempts contracts for infrastructure/development projects covered by the BOT Law from
the 40% foreign ownership limitation.

For the same reasons above, petitioner's allegation that bundling violated Section 11,
[52]
 Article XII of the Constitution - which prescribes a 60% Filipino ownership
requirement for franchises, certificate, or for the operation of public utilities - must be
rejected.

Petitioner's argument that, bundling of the Projects gave shady companies direct access to
the Projects, also raises questions of fact. Foremost, petitioner does not identify these
"shady companies." Even assuming that petitioner is referring to any or all of the five
companies who have been pre-qualified to bid in the projects,[53] its assertion that these
companies are not financially able to undertake the project raises a question of fact,
financial ability being a pre-qualification requirement. As already stated earlier, such
question is one which this Court is ill-equipped to resolve.[54]

Finally, the allegation that bundling is in grave abuse of discretion is a conclusion of law.
As shown, no facts were even alleged to show which specific law was violated by the
decision to bundle the Projects.

In short, these three above arguments of petitioner must be dismissed for failure to.
sufficiently plead a cause of action. Even assuming that petitioner's causes of action were
properly alleged, the resolution of said issues would still require the determination of
factual issues which this Court simply cannot undertake.

In fine, while this Court has original and concurrent jurisdiction with the RTC and the
CA in the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
and habeas corpus[55] (extraordinary writs), direct recourse to this Court is proper only to
seek resolution of questions of law. Save for the single specific instance provided by the
Constitution under Section 18, Article VII,[56] cases the resolution of which depends on
the determination of questions of fact cannot be brought directly before the Court because
we are not a trier of facts. We are not equipped, either by structure or rule, to receive and
evaluate evidence in the first instance; these are the primary functions of the lower courts
or regulatory agencies.[57] This is the raison d'etre behind the doctrine of hierarchy of
courts. It operates as a constitutional filtering mechanism designed to enable this Court to
focus on the more fundamental tasks assigned to it by the Constitution. It is a bright-line
rule which cannot be brushed aside by an invocation of the transcendental importance or
constitutional dimension of the issue or cause raised.

II

For a better understanding of our ruling today, we review below, in light of the Court's
fundamental constitutional tasks, the constitutional and statutory evolution of the Court's
original and concurrent jurisdiction, and its interplay with related doctrines,
pronouncements, and even the Court's own rules, as follows:

(a) The Court's original and concurrent jurisdiction;

(b) Direct recourse to the Court under the Angara[58] model;

(c) The transcendental importance doctrine;

(d) The Court is not a trier of facts;

(e) The doctrine of hierarchy of courts;

(f) The Court's expanded jurisdiction, social rights, and the Court's constitutional rule-
making power under the 1987 Constitution;

(g) Exceptions to the doctrine of hierarchy of courts: The case of The Diocese of Bacolod
v. Commission on Elections;[59]

(h) Hierarchy of courts as a constitutional imperative; and

(i) Hierarchy of courts as a filtering mechanism.

A
The Court's original and concurrent jurisdiction

The Supreme Court's original jurisdiction over petitions for extraordinary writs predates
the 1935 Constitution.

On June 11, 1901, the Second Philippine Commission, popularly known as the Taft
Commission, enacted Act No. 136, or An Act Providing For the Organization of Courts
in the Philippine Islands.[60] Act No. 136 vested the judicial power of the Government of
the Philippine Islands unto the Supreme Court, Courts of First Instance (CFI), courts of
justices of the peace, together with such special jurisdiction of municipal courts, and
other special tribunals as may be authorized by law.[61] Under Act No. 136, the Supreme
Court had original jurisdiction over the following cases:
Sec. 17. Its Original Jurisdiction. - The Supreme Court shall have original jurisdiction to
issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the
cases and in the manner prescribed in the Code of Civil Procedure, and to hear and
determine controversies thus brought before it, and in other cases provided by law.
(Emphasis supplied.)
The Code of Civil Procedure[62] (1901 Rules) referred to in Section 17 of Act No. 136, in
turn, provided that the Supreme Court shall have concurrent jurisdiction with the CFIs
in certiorari, prohibition, and mandamus proceedings over any inferior tribunal, board, or
officer and in quo warranto and habeas corpus proceedings.[63] Likewise, the 1901 Rules
stated that the Court shall have original jurisdiction by certiorari and mandamus over the
proceedings of CFIs wherever said courts have acted without, or in excess of,
jurisdiction, or in case of a mandamus proceeding, hen the CFIs and judges thereof
unlawfully neglect the performance of a duty imposed by law.[64]

Notably, Sections 496 and 497 of the 1901 Rules proscribed the Court not only from
reviewing the evidence taken in the court below but also from retrying questions of
fact, viz.:
Sec. 496. General Procedure in the Supreme Court. - The Supreme Court may. in the
exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment, order,
or decree of a Court of First Instance, regularly entered in the Supreme Court by bill of
exceptions, or appeal, and may direct the proper judgment, order, or decree to be entered,
or direct a new trial, or further proceedings to be had, and if a new trial shall be
granted, the court shall pass upon and determine all the questions of law involved in
the case presented by such bill of exceptions and necessary for the final
determination of the action.

Sec. 497. Hearings Confined to Matters of Law, With Certain Exceptions. - In hearings

upon bills of exception, in civil actions and special proceedings, the Supreme Court
shall not review the evidence taken in the court below, nor retry the questions of
fact, except as in this section hereafter provided; but shall determine only questions
of law raised by the bill of exceptions. x x x (Emphasis supplied.)
On July 1, 1902, the Congress enacted the Philippine Bill[65] or the first "Constitution" of
the Philippines under the American occupation.[66] The Philippine Bill retained original
jurisdiction of the Supreme Court conferred under Act No. 136, with the caveat that the
legislative department might add to such jurisdiction.[67] Thus, in Weigall v. Shuster,
[68]
 one of the earliest cases of the Court, we held that the Philippine Commission could
increase, but not decrease, our original jurisdiction under Act No. 136.

On December 31, 1916, Act No. 2657 or the Administrative Code was enacted, which
included the "Judiciary Law" under Title IV, Chapter 10. It was revised on March 10,
1917 through the Revised Administrative Code,[69] which increased the original
jurisdiction of the Supreme Court by adding those cases affecting ambassadors, other
public ministers, and consuls.[70]

On May 14, 1935, 33 years after the enactment of the Philippine Bill, the Philippines
ratified the 1935 Constitution. Like its predecessor, the 1935 Constitution adopted the
original jurisdiction of the Supreme Court as provided in existing laws, i.e., Act No. 136,
the 1901 Rules, and the Revised Administrative Code. Section 3, Article VIII of the 1935
Constitution states that, "[u]ntil the [Congress] shall provide otherwise the Supreme
Cow1shall have such original and appellate jurisdiction as may be possessed and
exercised by the Supreme Court of the Philippine Islands at the time of the adoption of
this Constitution. x x x"[71] The 1935 Constitution further stated that the Congress may not
deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors,
other public ministers, and consuls.[72]

On December 31, 1935, Commonwealth Act No. 3,[73] amending the Revised

Administrative Code, created the Court of Appeals (CA) and granted it "original
jurisdiction to issue writs of mandamus, prohibition, injunction, certiorari, habeas
corpus, and all other auxiliary writs and process in aid of its appellate jurisdiction."[74]

On June 17, 1948, the Congress enacted RA No. 296, otherwise known as the Judiciary
Reorganization Act of 1948. Section 17 of RA No. 296 vested the Supreme Court with
"original and exclusive jurisdiction in petitions for the issuance of writs of certiorari,
prohibition and mandamus against the Court of Appeals." It also provided that the
Supreme Court shall exercise original and concurrent jurisdiction with CFIs :
xxxx

1. In petitions for the issuance of writs of certiorari, prohibition, mandamus, quo

warranto, and habeas corpus;

2. In actions between the Roman Catholic Church and the municipalities or towns, or the
Filipino Independent Church for controversy as to title to, or ownership, administration or
possession of hospitals, convents, cemeteries or other properties used in connection
therewith;

3. In actions brought by the Government of the Philippines against the Roman Catholic
Church or vice versa for the title to, or ownership of, hospitals, asylums, charitable
institutions, or any other kind of property; and

4. In actions brought to prevent and restrain violations of law concerning monopolies and
combinations in restraint of trade.
RA No. 5440 amended RA No. 296 on September 9, 1968, deleting numbers 3 and 4
mentioned above.[75]

Several years later, on January 17, 1973, the Philippines ratified the 1973 Constitution.
Article X of the same is dedicated to the Judiciary. Section 5(1) of the said article
provides for the Supreme Court's original jurisdiction, viz.:
Sec. 5. The Supreme Court shall have the following powers:
 
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto,
 and habeas corpus.

xxxx
Where the 1935 Constitution only referred to the original jurisdiction which the Supreme
Court possessed at the time of its adoption, the 1973 Constitution expressly provided for
the Supreme Court's original jurisdiction over petitions for the issuance of extraordinary
writs.

In 1981, this Court's original jurisdiction over extraordinary writs became concurrent
with the CA, pursuant to Batas Pambansa Bilang 129 (BP 129) or The Judiciary
Reorganization Act of 1980. BP 129 repealed RA No. 296[76] and granted the CA with
"[o]riginal jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction."[77] In addition, Section 21(2) of BP 129 bestowed the RTCs
(formerly the CFIs) with original (and consequently, concurrent with the Supreme Court)
jurisdiction over actions affecting ambassadors and other public ministers and consuls.

Seven years after the enactment of BP 129, the Philippines ratified the 1987 Constitution;
Article VII, Section 5(1) of which provides the original jurisdiction of the Supreme
Court, which is an exact reproduction of Section 5(1), A1ticle X of the 1973 Constitution.

B
Direct recourse to the Court under the Angara model

Direct invocation of the Court's original jurisdiction over the issuance of extraordinary
writs started in 1936 with Angara v. Electoral Commission.[78] Angara is the first case
directly filed before the Court after the 1935 Constitution took effect on November 15,
1935. It is the quintessential example of a valid direct recourse to this Court on
constitutional questions.

Angara was an original petition for prohibition seeking to restrain the Electoral

Commission from taking further cognizance of an election contest led against an elected
(and confirmed) member of the National Assembly. The main issue before the Court
involved the question of whether the Supreme Court had jurisdiction over the Electoral
Commission and the subject matter of the controversy.[79]

We took cognizance of the petition, ruling foremost that the Court has jurisdiction over
the case by virtue of its "power of judicial review under the Constitution:"
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. x x x[80]
In Angara, there was no dispute as to the facts. Petitioner was allowed to file the petition
for prohibition directly before us because what was considered was the nature of the
issue involved in the case: a legal controversy between two agencies of the
government that called for the exercise of the power of judicial review by the final
arbiter of the Constitution, the Supreme Court.

Several years later, another original action for prohibition was filed directly before the
Court, this time seeking to enjoin certain members of the rival political party from
"continuing to usurp, intrude into and/or hold or exercise the said public offices
respectively being occupied by them in the Senate Electoral Tribunal." In Tañada and
Macapagal v. Cuenco, et al.[81] we were confronted with the issue of whether the election
of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral
Tribunal, upon nomination by Senator Primicias - a member and spokesman of the party
having the largest number of votes in the Senate - on behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral
Tribunal shall be chosen "upon nomination x x x of the party having the second largest
number of votes. x x x x."[82] There, this Court proceeded to resolve the constitutional
issue raised without inquiring into the propriety of direct recourse to us. Similar
with Angara, the question before us, then, was purely legal.

The Angara model of direct recourse would be followed and allowed by the Court

in Bengzon Jr. v. Senate Blue Ribbon Committee,[83] Francisco, Jr. v. Nagmamalasakit na
mga Manananggol ng mga Manggagawang Pilipino, Inc.[84] Province of North Cotabato
v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain
(GRP),[85] Macalintal v. Presidential Electoral Tribunal,[86] Belgica v. Ochoa,[87] Imbong
v. Ochoa, Jr.,[88] Araullo v. Aquino III,[89] Saguisag v. Ochoa, Jr.,[90] Padilla v. Congress
of the Philippines,[91] to name a few. To stress, the common denominator of all these
cases is that the threshold questions presented before us are ones of law.

C
The transcendental importance doctrine

In 1949, the Court introduced a legal concept that will later underpin most of the cases
filed directly before us - the doctrine of transcendental importance. Although this
doctrine was originally used to relax the rules on locus standi or legal standing, its
application would later be loosely extended as an independent justification for direct
recourse to this Court.

We first used the term "transcendental importance" in Araneta v. Dinglasan.

[92]
 Araneta involved five consolidated petitions before the Court assailing the validity of
the President's orders issued pursuant to Commonwealth Act No. 671, or "An Act
Declaring a State of Total Emergency as a Result of War Involving the Philippines and
Authorizing the President to Promulgate Rules and Regulations to Meet such
Emergency."[93] Petitioners rested their case on the theory that Commonwealth Act No.
671 had already ceased to have any force and effect.[94] The main issues for resolution
in Araneta were: (1) whether Commonwealth Act No. 671 was still in force; and
relatedly, (2) whether the executive orders issued pursuant thereto were valid.
Specifically, the Court had to resolve the issue of whether Commonwealth Act No. 671
(and the President's Emergency Powers) continued to be effective after the opening of the
regular session of Congress.

In overruling the objection to the personality or sufficiency of the interest of petitioners in

bringing the actions as taxpayers,[95] this Court declared that "[a]bove all, the
transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure."[96] Thus,
and similar with Angara, direct recourse to the Court in Araneta is justified because
the issue to be resolved there was one of law; there was no dispute as to any
underlying fact. Araneta has since then been followed by a myriad of cases[97] where
transcendental importance was cited as basis for setting aside objections on legal
standing.

It was in Chavez v. Public Estates Authority[98] when, for the first time, it appeared that
the transcendental importance doctrine could, apart from its original purpose to overcome
objections to standing, stand as a justification for disregarding the proscription against
direct recourse to the Court. Chavez is an original action for mandamus filed before the
Court against the Public Estates Authority (PEA). There, the petition sought, among
others, to compel the PEA to disclose all facts on the PEA's then on-going renegotiations
to reclaim portions of Manila Bay.[99] On the issue of whether the non-observance of the
hierarchy of courts merits the dismissal of the petition, we ruled that:
x x x The principle of hierarchy of courts applies generally to cases involving factual
questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional issues of
transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition
for mandamus which falls under the original jurisdiction of the Court under Section 5,
Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.[100] (Emphasis supplied; citation omitted.)
D
The Court is not a trier of facts

In 1973, the dictum that the Supreme Court is not trier of facts first appeared in
jurisprudence through the concurring opinion of then Chief Justice Querube Makalintal
in Chemplex (Philippines) Inc. v. Pamatian.[101] Chemplex involved a petition
for certiorari against an order recognizing the validity and legitimacy of the election of
directors on the board of a private corporation. In his concurrence to the majority
decision dismissing the petition, Chief Justice Querube Makalintal wrote:
Judge Pamatian issued the order now assailed herein after he heard the parties and
received relevant evidence bearing on the incident before him, namely, the issuance
of a writ of preliminary injunction as prayed for by the defendants. He issued the
writ on the basis of the facts as found by him, subject of course, as he himself admitted,
considering the interlocutory nature of the injunction, to further consideration of the case
on the merits after trial. I do not see that his factual findings are arbitrary or
unsupported by the evidence. If anything, they are circumspect, reasoned out and
arrived at after serious judicial inquiry.

This Court is not a trier of facts, and it is beyond its function to make its own
findings of certain vital facts different from those of the trial court, especially on the
basis of the conflicting claims of the parties and without the evidence being properly
before it. For this Court to make such factual conclusions is entirely unjustified -
first, because if material facts are controverted, as in this case, and they are issues being
litigated before the lower court, the petition for certiorari would not be in aid of the
appellate jurisdiction of this Court; and, secondly, because it preempts the primary
function of the lower court, namely, to try the case on the merits, receive all the
evidence to be presented by the parties, and only then come to a definite decision,
including either the maintenance or the discharge of the preliminary injunction it has
issued.

The thousands of pages of pleadings, memoranda, and annexes already before this
Court and the countless hours spent in discussing the bare allegations of the parties
- as to the factual aspects of which the members are in sharp disagreement - merely
to r solve whether or not to give due course to the petition, demonstrate clearly why
this Court, in a case like this, should consider only one question, and no other,
namely, did the court below commit a grave abuse of discretion in issuing the order
complained of, and should answer that question without searching the pleadings for
supposed facts still in dispute and not those set forth in the order itself, and in effect
deciding the main case on the merits although it is yet in its preliminary stages and has
not entered the period of trial.[102] (Emphasis and italics supplied.)
The maxim that the Supreme Court is not a trier of facts will later find its way in the
Court's majority opinion in Mafinco Trading Corporation v. Ople.[103]

Mafinco involved a special civil action for certiorari and prohibition to annul a Decision

of the Secretary of Labor, finding that the old National Labor Relations Commission
(NLRC) had jurisdiction over the complaint filed against Mafinco Trading Corporation
for having dismissed two union members. The crucial issue brought before the Court was
whether an employer-employee relationship existed between petitioner and the private
respondents. Before resolving the issue on the basis of the parties' contracts, the Court
made the following pronouncements:
The parties in their pleadings and memoranda injected conflicting factual allegations to
support their diametrically opposite contentions. From the factual angle, the case has
become highly controversial.

In a certiorari and prohibition case, like the instant case, only legal issues affecting
the jurisdiction of the tribunal, board or officer involved may be resolved on the
basis of undisputed facts. Sections 1, 2 and 3, Rule 65 of the Rules of Court require
that in the verified petition for certiorari, mandamus and prohibition the petitioner
should allege "facts with certainty".

In this case, the facts have become uncertain. Controversial evidentiary facts have
been alleged. What is certain and indubitable is that a notarized peddling contract
was executed.

This Court is not a trier of facts. It would be difficult, if not anomalous, to decide the
jurisdictional issue on the basis of the parties contradictory factual submissions. The
record has become voluminous because of their efforts to persuade this Court to
accept their discordant factual statements.

Pro hac vice the issue of whether Repomanta and Moralde were employees of Mafinco or
were independent contractors should be resolved mainly in the light of their peddling
contracts. A different approach would lead this Court astray into the field of factual
controversy where its legal pronouncements would not rest on solid grounds.
[104]
 (Emphasis supplied.)
The Rules of Court referred to above is the 1964 Rules of Court. Up to this date, the
requirement of alleging facts with certainty remains in Sections 1 to 3 of Rule 65 of the
1997 Revised Rules of Court.

Meanwhile, the Court, aware of its own limitations, decreed in Section 2, Rule 3 of its
Internal Rules[105] that it is "not a trier of facts," viz.:
Sec. 2. The Court Not a Trier of Facts. - The Court is not a trier of facts; its role is to
decide cases based on the findings of fact before it. Where the Constitution, the law or the
Court itself, in the exercise of its discretion, decides to receive evidence, the reception of
evidence may be delegated to a member of the Court, to either the Clerk of Court or one
of the Division Clerks of Court, or to one of the appellate courts or its justices who shall
submit to the Court a report and recommendation on the basis of the evidence presented.
E
The doctrine of hierarchy of courts

Starting in 1987, the Court, in two cases, addressed the penchant of litigants to seek direct
recourse to it from decisions originating even from the municipal trial courts and city
courts.
In Vergara, Sr. v. Suelto,[106] the Court's original jurisdiction over special civil actions
for mandamus was invoked to compel a Municipal Trial Court (MTC) to issue summary
judgment in a case for illegal detainer. There, we declared in no uncertain terms that:
x x x As a matter of policy[,] such a direct recourse to this Court should not be
allowed. The Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely necessary or where
serious and important reasons exist therefor[.] Hence, that jurisdiction should
generally be exercised relative to actions or proceedings before the Court of Appeals, or
before constitutional or other tribunals, bodies or agencies whose acts for some reason or
another, are not controllable by the Court of Appeals. Where the issuance of an
extraordinary writ is also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the specific action for the
writ's procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe. [107] (Emphasis
supplied.)
This so-called "policy" was reaffirmed two years later in People v. Cuaresma,[108] which
involved a petition for certiorari challenging the quashal by the City Fiscal of an
Information for defamation on the ground of prescription. In dismissing the petition, this
Court reminded litigants to refrain from directly filing petitions for extraordinary writs
before the Court, unless there were special and important reasons therefor. We then
introduced the concept of "hierarchy of courts," to wit:
x x x This Court's original jurisdiction to issue writs of certiorari (as well as
prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It
is shared by this Court with Regional Trial Courts (formerly Courts of First Instance),
which may issue the writ, enforceable in any part of their respective regions. It is also
shared by this Court, and by the Regional Trial Court, with the Court of Appeals
(formerly, Intermediate Appellate Court), although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the
extraordinary writs was restricted to those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of appeals, and should also
serve as a general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against
the latter, with the Court of Appeals. A direct invocation of the Supreme Court's
original jurisdiction to issue these writs should be allowed only when there are
special and important reasons therefor, clearly and specifically set out in the
petition. This is established policy. x x x

The Court feels the need to reaffirm that policy at this time, and to enjoin strict
adherence thereto in the light of what it perceives to be a growing tendency on the
part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometime even their appeals, passed upon and adjudicated
directly and immediately by the highest tribunal of the land. x x x[109] (Emphasis and
underscoring supplied; citation omitted.)
This doctrine of hierarchy of courts guides litigants as to the proper venue of appeals
and/or the appropriate forum for the issuance of extraordinary writs. Thus, although this
Court, the CA, and the RTC have concurrent original jurisdiction[110] over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus, parties are
directed, as a rule, to file their petitions before the lower-ranked court. Failure to comply
ts sufficient cause for the dismissal of the petition.[111]

This Court has interchangeably referred to the hierarchy of courts as a "principle," [112] a
"rule,"[113] and a "doctrine."[114] For purposes for this discussion, however, we shall refer to
it as a doctrine.

F
The Court's expanded jurisdiction, social rights, and the Court's constitutional rule-
making power under the 1987 Constitution

With the 1987 Philippine Constitution came significant developments in terms of the
Court's judicial and rule-making powers.

First, judicial power is no longer confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable.[115] The
second paragraph of Section 1, Article VIII of the 1987 Constitution provides that
judicial power also includes the duty of the courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government." In Araullo v. Aquino III,
former Associate (now Chief) Justice Bersamin eruditely explained:
The Constitution states that judicial power includes the duty of the courts of justice not
only "to settle actual controversies involving rights which are legally demandable and
enforceable" but also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." It has thereby expanded the concept of judicial
power, which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable.

xxxx
With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the Government, even if the latter does
not exercise judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, supra.[116] (Italics supplied.)
It must be stressed, however, that this grant of expanded power of judicial review
did not result to the abandonment of the Angara model.[117] Direct recourse to the Court,
on grounds of grave abuse of discretion, was still allowed only when the questions
presented were legal.

Second, in addition to providing for "self-executory and ready for use"[118] civil and
political rights, the 1987 Constitution also contained provisions pertaining to what has
been termed as "social rights." Esteemed constitutionalist and member of the 1987
Constitutional Commission Father Joaquin G. Bernas, SJ, explained:
x x x But as will be seen, the 1987 Constitution advances beyond what was in previous
Constitutions in that it seeks not only economic social justice but also political social
justice.

x x x The guarantees of civil and political rights found principally in the Bill of Rights
are self-executory and ready for use. One can assert those rights in a court of justice.
Social rights are a different phenomenon. Except to the extent that they prohibit the
government from embarking in activity contrary to the ideals of social justice, they
generally are not rights in the strict sense that the rights in the Bill of Rights are. x x x In
legal effectiveness, they are primarily in the nature of claims of demands which people
expect government to satisfy, or they are ideals which government is expected to respect.
x x x[119]
This, in turn, gave rise to a slew of litigation invoking these so-called "social
rights."[120] In Oposa v. Factoran, Jr.,[121] for example, this Court famously recognized an
enforceable right to a balanced and healthful ecology under Section 16, Article II of the
1987 Constitution.

Third, the Supreme Court's rule-making power was enhanced under the new Constitution,
to wit:
xxxx

Section 5. The Supreme Court shall have the following powers:

xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.[122] (Italics in the original)
For the first time, the Court was granted with the following: (1) the power to promulgate
rules concerning the protection and enforcement of constitutional rights; and (2) the
power to disapprove rules of procedure of special courts and quasi-judicial bodies. The
1987 Constitution also took away the power of Congress to repeal, alter, or supplement
rules concerning pleading, practice and procedure.[123]

Pursuant to its constitutional rule-making power,[124] the Court promulgated new sets of

rules which effectively increased its original and concurrent jurisdiction with the RTC
and the CA: (1) A.M. No. 07-9-12-SC or the Rule on the Writ of Amparo;[125] (2) A.M.
No. 08-1-16-SC or the Rule on the Writ of Habeas Data;[126] and (3) A.M. No. 09-6-8-SC
or the Rules of Procedure for Environmental Cases.[127]

Under these Rules, litigants are allowed to seek direct relief from this Court, regardless of
the presence of questions which are heavily factual in nature. In the same vein, judgments
in petitions for writ of amparo, writ of habeas data, and writ of kalikasan rendered by
lower-ranked courts can be appealed to the Supreme Court on questions of fact, or law, or
both, via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court.[128]

In practice, however, petitions for writ of amparo, writ of habeas data, and writ
of kalikasan which were originally filed before this Court invariably found their way to
the CA for hearing and decision, with the CA's decision to be later on brought before us
on appeal. Thus, in Secretary of National Defense v. Manalo,[129] the first
ever amparo petition, this Court ordered the remand of the case to the CA for the conduct
of hearing, reception of evidence, and decision.[130] We also did the same in:
(1) Rodriguez v. Macapagal-Arroyo;[131] (2) Saez v. Macapagal-Arroyo;[132] and
(3) International Service for the Acquisition of Agri-Biotech Applications, Inc., v.
Greenpeace Southeast Asia (Philippines).[133] The consistent practice of the Court in these
cases (that is, referring such petitions to the CA for the reception of evidence) is a tacit
recognition by the Court itself that it is not equipped to be a trier of facts.

Notably, our referral of the case to the CA for hearing, reception of evidence, and
decision is in consonance with Section 2, Rule 3 of our Internal Rules which states that if
the Court, in the exercise of its discretion, decides to receive evidence, it may delegate
the same to one of the appellate courts for report and recommendation.
 G
Exceptions to the doctrine of hierarchy of courts

Aside from the special civil actions over which it has original Jurisdiction, the Court,
through the years, has allowed litigants to seek direct relief from it upon allegation of
"serious and important reasons." The Diocese of Bacolod v. Commission on
Elections[134] (Diocese) summarized these circumstances in this wise:
(1) when there are genuine issues of constitutionality that must be addressed at the most
immediate time;

(2) when the issues involved are of transcendental importance;

(3) cases of first impression;

(4) the constitutional issues raised are better decided by the Court;

(5) exigency in certain situations;

(6) the filed petition reviews the act of a constitutional organ;

(7) when petitioners rightly claim that they had no other plain, speedy, and adequate
remedy in the ordinary course of law that could free them from the injurious effects of
respondents' acts in violation of their right to freedom of expression; [and]

(8) the petition includes questions that are "dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the
orders complained of were found to be patent nullities, or the appeal was considered as
clearly an inappropriate remedy."[135]
A careful examination of the jurisprudential bases[136] of the foregoing exceptions would
reveal a common denominator - the issues for resolution of the Court are purely legal.
Similarly, the Court in Diocese decided to allow direct recourse in said case because, just
like Angara, what was involved was the resolution of a question of law, namely, whether
the limitation on the size of the tarpaulin in question violated the right to free speech of
the Bacolod Bishop.

We take this opportunity to clarify that the presence of one or more of the so-called
"special and important reasons" is not the decisive factor considered by the Court in
deciding whether to permit the invocation, at the first instance, of its original jurisdiction
over the issuance of extraordinary writs. Rather, it is the nature of the question raised
by the parties in those "exceptions" that enabled us to allow the direct action before
us.

As a case in point, we shall focus our discussion on transcendental importance. Petitioner

after all argues that its direct resort to us is proper because the issue raised (that is,
whether the bundling of the Projects violates the constitutional proscription on monopoly
and restraint of trade) is one of transcendental importance or of paramount public interest.

An examination of the cases wherein this Court used "transcendental importance" of the
constitutional issue raised to excuse violation of the principle of hierarchy of courts
would show that resolution of factual issues was not necessary for the resolution of the
constitutional issue/s. These cases include Chavez v. Public Estates Authority,[137] Agan,
Jr. v. Philippine International Air Terminals Co., Inc.,[138] Jaworski v. Philippine
Amusement and Gaming Corporation,[139] Province of Batangas v. Romulo,[140] Aquino III
v. Commission on Elections,[141] Department of Foreign Affairs v. Falcon,[142] Capalla v.
Commission on Elections,[143] Kulayan v. Tan,[144] Puna v. Manila Economic & Cultural
Office,[145] Ferrer, Jr. v. Bautista,[146] and Ifurung v. Carpio-Morales.[147] In all these cases,
there were no disputed facts and the issues involved were ones of law.

In Agan, we stated that "[t]he facts necessary to resolve these legal questions are well
established and, hence, need not be determined by a trial court,"[148] In Jaworski, the issue
is whether Presidential Decree No. 1869 authorized the Philippine Amusement and
Gaming Corporation to contract any part of its franchise by authorizing a concessionaire
to operate internet gambling.[149] In Romulo, we declared that the facts necessary to
resolve the legal question are not disputed.[150] In Aquino III, the lone issue is whether RA
No. 9716, which created an additional legislative district for the Province of Camarines
Sur, is constitutional.[151] In Falcon, the threshold issue is whether an information and
communication technology project, which does not conform to our traditional notion of
the term "infrastructure," is covered by the prohibition against the issuance of court
injunctions under RA No. 8975.[152] Similarly, in Capalla, the issue is the validity and
constitutionality of the Commission on Elections' Resolutions for the purchase of precint
count optical scanner machines as well as the extension agreement and the deed of sale
covering the same.[153] In Kulayan, the issue is whether Section 465 in relation to Section
16 of the Local Government Code authorizes the respondent governor to declare a state
of national emergency and to exercise the powers enumerated in his Proclamation No. 1-
09.[154] In Funa, the issue is whether the Commission on Audit is, under prevailing law,
mandated to audit the accounts of the Manila Economic and Cultural Office.
[155]
 In Ferrer, the issue is the constitutionality of the Quezon City ordinances imposing
socialized housing tax and garbage fee.[156] In Ifurung, the issue is whether Section 8(3) of
RA No. 6770 or the Ombudsman Act of 1989 is constitutional.[157]

More recently, in Aala v. Uy,[158] the Court En Banc, dismissed an original action

for certiorari, prohibition, and mandamus, which prayed for the nullification of an
ordinance for violation of the equal protection clause, due process clause, and the rule on
uniformity in taxation. We stated that, not only did petitioners therein fail to set forth
exceptionally compelling reasons for their direct resort to the Court, they also raised
factual issues which the Court deems indispensable for the proper disposition of the case.
We reiterated the time-honored rule that we are not a trier of facts: "[T]he initial
reception and appreciation of evidence are functions that [the] Court cannot perform.
These are functions best left to the trial courts."[159]

To be clear, the transcendental importance doctrine does not clothe us with the power to
tackle factual questions and play the role of a trial court. The only circumstance when we
may take cognizance of a case in the first instance, despite the presence of factual issues,
is in the exercise of our constitutionally-expressed task to review the sufficiency of the
factual basis of the President's proclamation of martial law under Section 18, Article VII
of the 1987 Constitution.[160] The case before us does not fall under this exception.

H
Hierarchy of courts is a constitutional imperative

Strict observance of the doctrine of hierarchy of courts should not be a matter of mere
policy. It is a constitutional imperative given (1) the structure of our judicial system and
(2) the requirements of due process.

First. The doctrine of hierarchy of courts recognizes the various levels of courts in the
country as they are established under the Constitution and by law, their ranking and effect
of their rulings in relation with one another, and how these different levels of court
interact with one another.[161] It determines the venues of appeals and the appropriate
forum for the Issuance of extraordinary writs.[162]

Since the creation of the Court in 1901,[163] and save for certain exceptions, it does not, as
a rule, retry questions of facts.[164] Trial courts such as the MTCs and the RTCs, on the
other hand, routinely decide questions of fact and law at the first instance, in accordance
with the jurisdiction granted to them by law.[165] While the CA and other intermediate
courts can rule on both questions of fact and law, the Supreme Court, in stark contrast,
generally decides only questions of law. This is because the Court, whether in the
exercise of its original or appellate jurisdiction, is not equipped to receive and evaluate
evidence in the first instance. Our sole role is to apply the law based on the findings of
facts brought before us.[166] Notably, from the 1901 Rules[167] until the present 1997
Revised Rules of Court,[168] the power to ascertain facts and receive and evaluate evidence
in relation thereto is lodged with the trial courts.

In Alonso v. Cebu Country Club, Inc. (Alonso),[169] this Court had occasion to articulate

the role of the CA in the judicial hierarchy, viz.:
The hierarchy of courts is not to be lightly regarded by litigants. The CA stands between
the RTC and the Court, and its establishment has been precisely to take over much
of the work that used to be done by the Court. Historically, the CA has been of the
greatest help to the Court in synthesizing the facts, issues, and rulings in an orderly
and intelligible manner and in identifying errors that ordinarily might escape
detection. The Court has thus been freed to better discharge its constitutional duties
and perform its most important work, which, in the words of Dean Vicente G. Sinco,
"is less concerned with the decision of cases that begin and end with the transient rights
and obligations of particular individuals but is more intertwined with the direction of
national policies, momentous economic and social problems, the delimitation of
governmental authority and its impact upon fundamental rights."[170] (Emphasis supplied;
citations omitted.)
Accordingly, when litigants seek relief directly from the Court, they bypass the judicial
structure and open themselves to the risk of presenting incomplete or disputed facts. This
consequently hampers the resolution of controversies before the Court. Without the
necessary facts, the Court cannot authoritatively determine the rights and obligations of
the parties. The case would then become another addition to the Court's already
congested dockets. Thus, as we explained in Alonso:
x x x Their non-observance of the hierarchy of courts has forthwith enlarged the docket
of the Court by one more case, which, though it may not seem burdensome to the layman,
is one case too much to the Court, which has to devote time and effort in poring over the
papers submitted herein, only to discover in the end that a review should have first been
made by the CA. The time and effort could have been dedicated to other cases of
importance and impact on the lives and rights of others.[171]
Second. Strict adherence to the doctrine of hierarchy of courts also proceeds from
considerations of due process. While the term "due process of law" evades exact and
concrete definition, this Court, in one of its earliest decisions, referred to it as a law
which hears before it condemns which proceeds upon inquiry and renders judgment only
after trial. It means that every citizen shall hold his life, liberty, property, and immunities
under the protection of the general rules which govern society.[172] Under the present
Rules of Court, which governs our judicial proceedings, warring factual allegations of
parties are settled through presentation of evidence. Evidence is the means of
ascertaining, in a judicial proceeding, the truth respecting a matter of fact:[173] As earlier
demonstrated, the Court cannot accept evidence in the first instance. By directly filing a
case before the Court, litigants necessarily deprive themselves of the oportunity to
completely pursue or defend their causes of actions. Their right to due process is
effectively undermined by their own doing.

Objective justice also requires the ascertainment of all relevant facts before the Court can
rule on the issue brought before it. Our pronouncement in Republic v.
Sandiganbayan[174] is enlightening:
The resolution of controversies is, as everyone knows, the raison d'etre of courts.
This essential function is accomplished by first, the ascertainment of all the material
and relevant facts from the pleadings and from the evidence adduced by the parties,
and second, after that determination of the facts has been completed, by the application of
the law thereto to the end that the controversy may be settled authoritatively, definitely
and finally.
It is for this reason that a substantial part of the adjective law in this jurisdiction is
occupied with assuring that all the facts are indeed presented to the Court; for
obviously, to the extent that adjudication is made on the basis of incomplete facts, to
that extent there is faultiness in the approximation of objective justice. It is thus the
obligation of lawyers no less than of judges to see that this objective is attained; that is to
say, that there no suppression, obscuration, misrepresentation or distortion of the facts;
and that no party be unaware of any fact material and relevant to the action, or surprised
by any factual detail suddenly brought to his attention during the trial.[175] (Emphasis
supplied.)
I

The doctrine of hierarchy of courts as a filtering mechanism

The doctrine of hierarchy of courts operates to: (1) prevent inordinate demands upon the
Court's time and attention which are better devoted to those matters within its exclusive
jurisdiction;[176] (2) prevent further overcrowding of the Court's docket;[177] and (3) prevent
the inevitable and resultant delay, intended or otherwise, in the adjudication of cases
which often have to be remanded or referred to the lower court as the proper forum under
the rules of procedure, or as the court better equipped to resolve factual questions. [178]

Strict adherence to the doctrine of hierarchy of courts is an effective mechanism to filter

the cases which reach the Court. As of December 31, 2016, 6,526 new cases were filed to
the Court. Together with the reinstated/revived/reopened cases, the Court has a total of
14,491 cases in its docket. Of the new cases, 300 are raffled to the Court En Banc and
6,226 to the three Divisions of the Court. The Court En Banc disposed of 105 cases by
decision or signed resolution, while the Divisions of the Court disposed of a total of 923
by decision or signed resolution.[179]

These, clearly, are staggering numbers. The Constitution provides that the Court has
original jurisdiction over five extraordinary writs and by our rule-making power, we
created four more writs which can be filed directly before us. There is also the matter of
appeals brought to us from the decisions of lower courts. Considering the immense
backlog facing the court, this begs the question: What is really the Court's work? What
sort of cases deserves the Court's attention and time?

We restate the words of Justice Jose P. Laurel in Angara that the Supreme Court is the
final arbiter of the Constitution. Hence, direct recourse to us should be allowed only
when the issue involved is one of law. However, and as former Associate Justice Vicente
V. Mendoza reminds, the Court may still choose to avoid passing upon constitutional
questions which are confessedly within its jurisdiction if there is some other ground on
which its decision may be based.[180] The so-called "seven pillars of limitations of judicial
review"[181] or the "rules of avoidance" enunciated by US Supreme Court Justice Brandeis
in his concurring opinion in Ashwander v. Tennessee Valley Authority[182] teaches that:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions "is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act."

2. The Court will not "anticipate a question of constitutional law in advance of the
necessity of deciding it." "It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case."

3. The Court will not "formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied."

4. The Court will not pass upon a constitutional question, although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a personal
or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained. In Fairchild v. Hughes, the Court
affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth
Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the Commonwealth on
behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. "When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible by which the question
may be avoided."[183] (Citations omitted.)
Meanwhile, in Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.,[184] the Court summarized the foregoing "pillars" into six
categories and adopted "parallel guidelines" in the exercise of its power of judicial
review, to wit:
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v.
Tennessee Valley Authority from different decisions of the United States Supreme Court,
can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required

by the facts of the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the

operation of the statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise
of judicial review:

1. actual case or controversy calling for the exercise of judicial power;

2. the person challenging the act must have "standing" to challenge; he

must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement;

3. the question of constitutionality must be raised at the earliest

possible opportunity;

4. the issue of constitutionality must be the very lis mota of the case.

[185]
 (Citations omitted.)

Thus, the exercise of our power of judicial review is subject to these four requisites and
the further requirement that we can only resolve pure questions of law. These limitations,
when properly and strictly observed, should aid in the decongestion of the Court's
workload.

To end, while reflective deliberation is necessary in the judicial process, there is simply
no ample time for it given this Court's massive caseload.[185] In fact, we are not unaware
of the proposals to radically reform the judicial structure in an attempt to relieve the
Court of its backlog of cases.[186] Such proposals are, perhaps, borne out of the public's
frustration over the slow pace of decision-making. With respect, however, no overhaul
would be necessary if this Court commits to be more judicious with the exercise of its
original jurisdiction by strictly implementing the doctrine of hierarchy of courts.

Accordingly, for the guidance of the bench and the bar, we reiterate that when a
question before the Court involves determination of a factual issue indispensable to
the resolution of the legal issue, the Court will refuse to resolve the question
regardless of the allegation or invocation of compelling reasons, such as the
transcendental or paramount importance of the case. Such question must first be
brought before the proper trial courts or the CA, both of which are specially
equipped to try and resolve factual questions.

WHEREFORE, PREMISES CONSIDERED, the petition is DISMISSED.

SO ORDERED.

EN BANC
[ G.R. No. 182498, December 03, 2009 ]
GEN. AVELINO I. RAZON, JR., CHIEF, PHILIPPINE NATIONAL POLICE
(PNP); POLICE CHIEF SUPERINTENDENT RAUL CASTAÑEDA, CHIEF,
CRIMINAL INVESTIGATION AND DETECTION GROUP (CIDG); POLICE
SENIOR SUPERINTENDENT LEONARDO A. ESPINA, CHIEF, POLICE
ANTI-CRIME AND EMERGENCY RESPONSE (PACER); AND GEN. JOEL
R. GOLTIAO, REGIONAL DIRECTOR OF ARMM, PNP, PETITIONERS, VS.
MARY JEAN B. TAGITIS, HEREIN REPRESENTED BY ATTY. FELIPE P.
ARCILLA, JR., ATTORNEY-IN-FACT, RESPONDENT.

DECISION

BRION, J.:

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of
the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision
confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent).
The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo Rules. The privileges of the writ
of amparo are hereby extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal

Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE
PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO
I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL
GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both
head of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid
him as their superior- are hereby DIRECTED to exert extraordinary diligence and
efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also
to extend the privileges of the writ of amparo to Engr. Morced Tagitis and his family,
and to submit a monthly report of their actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER

YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN
RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the
military, which is a separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo - a protective remedy against
violations or threats of violation against the rights to life, liberty and security.[3] It
embodies, as a remedy, the court's directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in this case, Engr.
Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the responsible parties
in the proper courts. Accountability, on the other hand, refers to the measure of remedies
that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have failed
to discharge, the burden of extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of the victim is preserved
and his liberty and security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard measures
and procedures in ordinary court actions and proceedings. In this sense, the Rule on the
Writ of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should
be read, too, as a work in progress, as its directions and finer points remain to evolve
through time and jurisprudence and through the substantive laws that Congress may
promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are summarized
below.

The established facts show that Tagitis, a consultant for the World Bank and the Senior
Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme,
was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar,
Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar
in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no longer around.[5] The
receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and
even left his room key with the desk.[6] Kunnong looked for Tagitis and even sent a text
message to the latter's Manila-based secretary who did not know of Tagitis' whereabouts
and activities either; she advised Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor

of Muslim studies and Tagitis' fellow student counselor at the IDB, reported Tagitis'
disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis'
disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition for the
Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police
(PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group
(CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency
Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After
reciting Tagitis' personal circumstances and the facts outlined above, the petition went on
to state:

xxxx

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted
by phone and was not also around and his room was closed and locked;

9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could have been abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;

12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;

14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that Engr.
Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City, being held against his will in an earnest attempt of the police
to involve and connect Engr. Tagitis with the different terrorist groups;

xxxx

17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband,
but [respondent's] request and pleadings failed to produce any positive results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with another
woman having good time somewhere, which is a clear indication of the [petitioners']
refusal to help and provide police assistance in locating her missing husband;

19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subject's whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;

20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the [respondent] in search
for her husband, which entailed expenses for her trips to these places thereby resorting
her to borrowings and beggings [sic] for financial help from friends and relatives only to
try complying [sic] to the different suggestions of these police officers, despite of which,
her efforts produced no positive results up to the present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons that she
should approach, but assured her not to worry because her husband is [sic] in good
hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondent's]

request for help and failure and refusal of the [petitioners] to extend the needed help,
support and assistance in locating the whereabouts of Engr. Tagitis who had been
declared missing since October 30, 2007 which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in physical possession and custody of
[respondent's] husband, Engr. Tagitis;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and the like which are in
total violation of the subject's human and constitutional rights, except the issuance of
a WRIT OF AMPARO. [Emphasis supplied]

On the same day the petition was filed, the CA immediately issued the Writ of Amparo,
set the case for hearing on January 7, 2008, and directed the petitioners to file their
verified return within seventy-two (72) hours from service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis' alleged abduction. They argued that
the allegations of the petition were incomplete and did not constitute a cause of action
against them; were baseless, or at best speculative; and were merely based on hearsay
evidence. [12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he
did not have any personal knowledge of, or any participation in, the alleged
disappearance; that he had been designated by President Gloria Macapagal Arroyo as the
head of a special body called TASK FORCE USIG, to address concerns about extralegal
killings and enforced disappearances; the Task Force, inter alia, coordinated with the
investigators and local police, held case conferences, rendered legal advice in connection
to these cases; and gave the following summary:[13]
xxxx

4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM

submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According
to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at
about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified
companion. It was only after a few days when the said victim did not return that the
matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a
thorough investigation to trace and locate the whereabouts of the said missing person, but
to no avail. The said PPO is still conducting investigation that will lead to the immediate
findings of the whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director,
CIDG. The said report stated among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 o'clock
in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15 o'clock in the morning
of the same date, he instructed his student to purchase a fast craft ticket bound for
Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about
10:00 o'clock in the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis,
but the latter did not return. On its part, the elements of 9RCIDU is now conducting a
continuous case build up and information gathering to locate the whereabouts of Engr.
Tagitis.

c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG
to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough
search, records show that no such person is being detained in CIDG or any of its
department or divisions.

5. On this particular case, the Philippine National Police exhausted all possible efforts,
steps and actions available under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation
of the victims and witnesses to identify the perpetrators to bring them before the bar of
justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ
of Amparo, he caused the following:[14]

xxxx

That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the Investigation
Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced
disappearance of Engineer Morced Tagitis.

That based on record, Engr. Morced N. Tagitis attended an Education Development

Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with
Prof. Abdulnasser Matli. On October 30, 2007, at around six o'clock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the
Islamic Development Bank who was also one of the participants of the said seminar. He
checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30,
2007 with [sic] unidentified companion. At around six o'clock in the morning of even
date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga
City. In the afternoon of the same date, Kunnong arrived at the pension house carrying
the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore.
Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the
police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make
out a case of an enforced disappearance which presupposes a direct or indirect
involvement of the government.

That herein [petitioner] searched all divisions and departments for a person named Engr.
Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough
research records show that no such person is being detained in CIDG or any of its
department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr. Morced

Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion in order to aid in the
prosecution of the person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt.

Leonardo A. Espina's affidavit which alleged that:[16]

xxxx

That, I and our men and women in PACER vehemently deny any participation in the
alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on
October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.

That I was shocked when I learned that I was implicated in the alleged disappearance of
ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office,
the Police Anti-Crime and Emergency Response (PACER), a special task force created
for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now
continue to be one of the menace of our society is a respondent in kidnapping or illegal
detention case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief
of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to
investigate, locate/search the subject, identify and apprehend the persons responsible, to
recover and preserve evidence related to the disappearance of ENGR. MORCED
TAGITIS, which may aid in the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them concerning the disappearance and to
determine the cause, manner, location and time of disappearance as well as any pattern or
practice that may have brought about the disappearance.

That I further directed the chief of PACER-MOR, Police Superintendent JOSE

ARNALDO BRIONES JR., to submit a written report regarding the disappearance of
ENGR. MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through fax his
written report.

That the investigation and measures being undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous Region of Muslim Mindanao
(PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to leave any stone unturned
so to speak in the investigation until the perpetrators in the instant case are brought to the
bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF

AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt
of the report on Tagitis' disappearance, viz:[17]

xxxx

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now and during the time
of the incident;

xxxx

4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office

reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November
4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the Chief of Police, Jolo Police
Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator
of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by any
member of the Philippine National Police but rather he just disappeared from ASY
Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;

7. The last known instance of communication with him was when Arsimin Kunnong, a
student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam
Express, however, when the student returned back to ASY Pension House, he no longer
found Engr. Tagitis there and when he immediately inquired at the information counter
regarding his whereabouts [sic], the person in charge in the counter informed him that
Engr. Tagitis had left the premises on October 30, 2007 around 1 o'clock p.m. and never
returned back to his room;

8. Immediately after learning the incident, I called and directed the Provincial Director of
Sulu Police Provincial Office and other units through phone call and text messages to
conduct investigation [sic] to determine the whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission, to recover and preserve
evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain
statements from them concerning his disappearance, to determine the cause and manner
of his disappearance, to identify and apprehend the person or persons involved in the
disappearance so that they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection Management

Division, I have caused the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD
Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD
Sulu PPO to expedite compliance to my previous directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our
series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of IDB
in order to secure corroborative statements regarding the disappearance and whereabouts
of said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph examination with the NBI so as
to expunge all clouds of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional Office 9, Zamboanga City,
requesting assistance to investigate the cause and unknown disappearance of Engr.
Tagitis considering that it is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring them to submit complete investigation report
regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted the following:

a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-
1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters as shown in the
following:

a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of
the facts of the disappearance and the action being taken by our office;

b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for

Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be

determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of favorable
actions so far taken on the disappearance, the CA directed Gen. Goltiao - as the officer in
command of the area of disappearance - to form TASK FORCE TAGITIS. [18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim)
to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor
whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would be to mobilize the
CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with
Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of
Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police
operatives.[21]

In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police
Station, stating a possible motive for Tagitis' disappearance.[22] The intelligence report
was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the
Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that:[23]

[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away... more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his ... [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the ... IDB Scholarship
Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an
ocular inspection/investigation, particularly of their detention cells.[24] PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.[25] He further testified that prior to the hearing, he had already mobilized and
given specific instructions to their supporting units to perform their respective tasks; that
they even talked to, but failed to get any lead from the respondent in Jolo.[26] In his
submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]

9. Gleaned from the undersigned inspection and observation at the Headquarters 9

RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and
other PNP units in the area had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has
been raised regarding the emolument on the Islamic Development Bank Scholar program
of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB
central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done
by resentment or sour grape among students who are applying for the scholar [sic] and
were denied which was allegedly conducted/screened by the subject being the
coordinator of said program.

20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he maliciously
spent for his personal interest and wanted to elude responsibilities from the institution
where he belong as well as to the Islamic student scholars should the statement of Prof.
Matli be true or there might be a professional jealousy among them.

xxxx

It is recommended that the Writ of Amparo filed against the respondents be dropped and
dismissed considering on [sic] the police and military actions in the area particularly the
CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of
its intelligence monitoring and investigation for the early resolution of this instant case.
But rest assured, our office, in coordination with other law-enforcement agencies in the
area, are continuously and religiously conducting our investigation for the resolution of
this case.

On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did
not appear to be exerting extraordinary efforts in resolving Tagitis' disappearance on the
following grounds:[28]

(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that
GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear
photographs when it should have been standard operating procedure in kidnappings or
disappearances that the first agenda was for the police to secure clear pictures of the
missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO
admitted having been informed on November 5, 2007 of the alleged abduction of Engr.
Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1)
month since the Writ of Amparo had been issued on December 28, 2007. It had been three
(3) weeks when battle formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear
and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis' claim that they already had an "all points bulletin", since November 5,
2007, on the missing person, Engr. Morced Tagitis. How could the police look for
someone who disappeared if no clear photograph had been disseminated?

(2) Furthermore, Task Force Tagitis' COL. AHIROM AJIRIM informed this Court that
P/Supt KASIM was designated as Col. Ahirom Ajirim's replacement in the latter's official
designated post. Yet, P/Supt KASIM's subpoena was returned to this Court unserved.
Since this Court was made to understand that it was P/Supt KASIM who was the
petitioner's unofficial source of the military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close
contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS
should have ensured the appearance of Col. KASIM in response to this court's subpoena
and COL. KASIM could have confirmed the military intelligence information that bad
elements of the CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination
that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a
friend from Zamboanga holding a high position in the military (whom she did not then
identify) gave her information that allowed her to "specify" her allegations, "particularly
paragraph 15 of the petition."[29] This friend also told her that her husband "[was] in good
hands."[30] The respondent also testified that she sought the assistance of her former boss
in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that
"PNP CIDG is holding [her husband], Engineer Morced Tagitis."[31] The respondent
recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were
then with her) a "highly confidential report" that contained the "alleged activities of
Engineer Tagitis" and informed her that her husband was abducted because "he is under
custodial investigation" for being a liaison for "J.I. or Jema'ah Islamiah."[32]

On January 17, 2008, the respondent on cross-examination testified that she is Tagitis'
second wife, and they have been married for thirteen years; Tagitis was divorced from his
first wife.[33] She last communicated with her husband on October 29, 2007 at around 7:31
p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga
City.[34]

The respondent narrated that she learned of her husband's disappearance on October 30,
2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not
heard from her father since the time they arranged to meet in Manila on October 31,
2007.[35] The respondent explained that it took her a few days (or on November 5, 2007)
to personally ask Kunnong to report her husband's disappearance to the Jolo Police
Station, since she had the impression that her husband could not communicate with her
because his cellular phone's battery did not have enough power, and that he would call
her when he had fully-charged his cellular phone's battery.[36]

The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col.
Ancanan). She met him in Camp Karingal, Zamboanga through her boss.[37] She also
testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and
her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the
contents of the "highly confidential report" at Camp Katitipan, Davao City. The
respondent further narrated that the report indicated that her husband met with people
belonging to a terrorist group and that he was under custodial investigation. She then told
Col. Kasim that her husband was a diabetic taking maintenance medication, and asked
that the Colonel relay to the persons holding him the need to give him his medication. [38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,
[39]
 signed by the respondent, detailing her efforts to locate her husband which led to her
meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her
narrative report concerning her meeting with Col. Ancanan, the respondent
recounted, viz:[40]

On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 o'clock in the morning; we arrived at
Zamboanga Airport at around 10:00 o'clock. We [were] fetched by the two staffs of Col.
Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).

On that same day, we had private conversation with Col. Ancanan. He interviewed me
and got information about the personal background of Engr. Morced N. Tagitis. After he
gathered all information, he revealed to us the contents of text messages they got from the
cellular phone of the subject Engr. Tagitis. One of the very important text messages of
Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer
any telephone calls in his condominium unit.

While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His
two staffs accompanied us to the mall to purchase our plane ticket going back to Davao
City on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me that my
husband is alive and he's last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe
his given statements of the whereabouts of my husband, because I contacted some of my
friends who have access to the groups of MILF, MNLF and ASG. I called up Col.
Ancanan several times begging to tell me the exact location of my husband and who held
him but he refused.

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP,
Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan
told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo." When
I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was
hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to
contact any AFP officials and he promised me that he can solve the case of my husband
(Engr. Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr.
Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]

On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao
City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis
was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis
took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information behind the
abduction of subject Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to
Col. Kasim and we had a short conversation. And he assured me that he'll do the best he
can to help me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me that I am to

go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information
to reveal.

On November 24, 2007, we went back to Camp Katitipan with my three friends. That
was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was
allegedly connected [with] different terrorist [groups], one of which he mentioned in the
report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as
a supplier. These are the two information that I can still remember. It was written in a
long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the
one who read it for us.

He asked a favor to me that "Please don't quote my Name! Because this is a raw report."
He assured me that my husband is alive and he is in the custody of the military for
custodial investigation. I told him to please take care of my husband because he has
aliments and he recently took insulin for he is a diabetic patient.

In my petition for writ of amparo, I emphasized the information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim. [42]

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them
that there was a report and that he showed them a series of text messages from Tagitis'
cellular phone, which showed that Tagitis and his daughter would meet in Manila on
October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the respondent
together with two other companions, namely, Salvacion Serrano and Mini Leong, to
Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if he knew the
exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands,
although he was not certain whether he was with the PNP or with the Armed Forces of
the Philippines (AFP). She further recounted that based on the report Col. Kasim read in
their presence, Tagitis was under custodial investigation because he was being charged
with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the
time he was abducted when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could
not give a copy of the report because it was a "raw report."[45] She also related that the
Col. Kasim did not tell them exactly where Tagitis was being kept, although he
mentioned Talipapao, Sulu. Prof., lalabas din yan."[50] Prof. Matli also emphasized that
despite what his January 4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or
made any accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli
confirmed, however, that that he had received an e-mail report[53] from Nuraya Lackian of
the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office
in locating the funds of IDB scholars deposited in Tagitis' personal account. [54]

On cross-examination by the respondent's counsel, Prof. Matli testified that his January 4,
2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.[55] Prof
Matli clarified that although he read the affidavit before signing it, he "was not so much
aware of... [its] contents."[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of
the respondent's testimony, particularly the allegation that he had stated that Tagitis was
in the custody of either the military or the PNP.[57] Col. Kasim categorically denied the
statements made by the respondent in her narrative report, specifically: (1) that Tagitis
was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis
was under the custody of the military, since he merely said to the respondent that
"your husband is in good hands" and is "probably taken cared of by his armed
abductors;" and (3) that Tagitis was under custodial investigation by the military, the
PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized that the "informal letter"
he received from his informant in Sulu did not indicate that Tagitis was in the custody of
the CIDG.[59] He also stressed that the information he provided to the respondent was
merely a "raw report" sourced from "barangay intelligence" that still needed
confirmation and "follow-up" as to its veracity.[60]

On cross-examination, Col. Kasim testified that the information he gave the respondent
was given to him by his informant, who was a "civilian asset," through a letter which he
considered as "unofficial."[61] Col. Kasim stressed that the letter was only meant for his
"consumption" and not for reading by others.[62] He testified further that he destroyed the
letter right after he read it to the respondent and her companions because "it was not
important to him" and also because the information it contained had no importance in
relation with the abduction of Tagitis.[63] He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.[64]

In the same hearing on February 11, 2008, the petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the
respondent's allegation that Tagitis was in the custody of CIDG-Zamboanga City. [65] Col.
Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG
"investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes."[66] Col. Pante further testified that the
allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis'
reported disappearance.[67] Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any "operation," since they were only assigned to
investigate matters and to monitor the terrorism situation.[68] He denied that his office
conducted any surveillance on Tagitis prior to the latter's disappearance. [69] Col. Pante
further testified that his investigation of Tagitis' disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts of Tagitis. [70]

THE CA RULING

On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of

Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on
the Protection of All Persons from Enforced Disappearances.[72] The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved
in the abduction, the missing-person case qualified as an enforced disappearance. The
conclusion that the CIDG was involved was based on the respondent's testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in Tagitis' abduction came from no
less than the military - an independent agency of government. The CA thus greatly relied
on the "raw report" from Col. Kasim's asset, pointing to the CIDG's involvement in
Tagitis' abduction. The CA held that "raw reports" from an "asset" carried "great weight"
in the intelligence world. It also labeled as "suspect" Col. Kasim's subsequent and belated
retraction of his statement that the military, the police, or the CIDG was involved in the
abduction of Tagitis.

The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation"
police theories painting the disappearance as "intentional" on the part of Tagitis. He had
no previous brushes with the law or any record of overstepping the bounds of any trust
regarding money entrusted to him; no student of the IDB scholarship program ever came
forward to complain that he or she did not get his or her stipend. The CA also found no
basis for the police theory that Tagitis was "trying to escape from the clutches of his
second wife," on the basis of the respondent's testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and that there was "no issue" at all when
the latter divorced his first wife in order to marry the second. Finally, the CA also ruled
out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause
for Tagitis' disappearance, since the respondent, the police and the military noted that
there was no acknowledgement of Tagitis' abduction or demand for payment of ransom -
the usual modus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis
and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief
Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim,
and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and
efforts to protect the life, liberty and security of Tagitis, with the obligation to provide
monthly reports of their actions to the CA. At the same time, the CA dismissed the
petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen.
Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was
involved.

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008.[73]

THE PETITION

In this Rule 45 appeal questioning the CA's March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed before
the CA; the sufficiency of the legal remedies the respondent took before petitioning for
the writ; the finding that the rights to life, liberty and security of Tagitis had been
violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted;
the conclusion that the CIDG Zamboanga was responsible for the abduction; and,
generally, the ruling that the respondent discharged the burden of proving the allegations
of the petition by substantial evidence.[74]

THE COURT'S RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the respondent's Amparo petition,

the petitioners contend that the petition violated Section 5(c), (d), and (e) of
the Amparo Rule. Specifically, the petitioners allege that the respondent failed to:

1) allege any act or omission the petitioners committed in violation of Tagitis' rights to
life, liberty and security;

2) allege in a complete manner how Tagitis was abducted, the persons responsible for his
disappearance, and the respondent's source of information;

3) allege that the abduction was committed at the petitioners' instructions or with their
consent;

4) implead the members of CIDG regional office in Zamboanga alleged to have custody
over her husband;

5) attach the affidavits of witnesses to support her accusations;

6) allege any action or inaction attributable to the petitioners in the performance of their
duties in the investigation of Tagitis' disappearance; and

7) specify what legally available efforts she took to determine the fate or whereabouts of
her husband.

A petition for the Writ of Amparo shall be signed and verified and shall allege, among
others (in terms of the portions the petitioners cite):[75]

(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and how
such threat or violation is committed with the attendant circumstances detailed in
supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals, as well as
the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete in every

detail in stating the threatened or actual violation of a victim's rights. As in any other
initiatory pleading, the pleader must of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details.[76] In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may not be able to describe with
certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule a token gesture of
judicial concern for violations of the constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the

unique Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while presenting
a cause of action showing a violation of the victim's rights to life, liberty and security
through State or private party action. The petition should likewise be read in its totality,
rather than in terms of its isolated component parts, to determine if the required elements
- namely, of the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security - are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances
under which Tagitis suddenly dropped out of sight after engaging in normal activities,
and thereafter was nowhere to be found despite efforts to locate him. The petition alleged,
too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable
information, police operatives were the perpetrators of the abduction. It also clearly
alleged how Tagitis' rights to life, liberty and security were violated when he was
"forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be
police intelligence operatives," and then taken "into custody by the respondents' police
intelligence operatives since October 30, 2007, specifically by the CIDG, PNP
Zamboanga City, x x x held against his will in an earnest attempt of the police to involve
and connect [him] with different terrorist groups."[77]

These allegations, in our view, properly pleaded ultimate facts within the pleader's
knowledge about Tagitis' disappearance, the participation by agents of the State in this
disappearance, the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right to liberty.
Thus, the petition cannot be faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature
of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiant's direct testimony. [78] This requirement,
however, should not be read as an absolute one that necessarily leads to the dismissal of
the petition if not strictly followed. Where, as in this case, the petitioner has substantially
complied with the requirement by submitting a verified petition sufficiently detailing the
facts relied upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required affidavits was fully
cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA
hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point, the petition cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an alleged

disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest opportunity
the level of diligence the public authorities undertook in relation with the reported
disappearance.[79]

We reject the petitioners' argument that the respondent's petition did not comply with the
Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph
11 that Kunnong and his companions immediately reported Tagitis' disappearance to the
police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the "ready answer" that Tagitis could have
been abducted by the Abu Sayyaf group or other anti-government groups. The respondent
also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint" with the
PNP Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the
police that her husband was having "a good time with another woman." The
disappearance was alleged to have been reported, too, to no less than the Governor of the
ARMM, followed by the respondent's personal inquiries that yielded the factual bases for
her petition.[80]

These allegations, to our mind, sufficiently specify that reports have been made to the
police authorities, and that investigations should have followed. That the petition did not
state the manner and results of the investigation that the Amparo Rule requires, but rather
generally stated the inaction of the police, their failure to perform their duty to
investigate, or at the very least, their reported failed efforts, should not be a reflection on
the completeness of the petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating authority, as well the
manner and conduct of the investigation is an overly strict interpretation of Section 5(d),
given the respondent's frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the petition
on the investigations undertaken are sufficiently complete for purposes of bringing the
petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition - that otherwise is not
supported by sufficient allegations to constitute a proper cause of action - as a means to
"fish" for evidence.[81] The petitioners contend that the respondent's petition did not
specify what "legally available efforts were taken by the respondent," and that there was
an "undue haste" in the filing of the petition when, instead of cooperating with
authorities, the respondent immediately invoked the Court's intervention.

We do not see the respondent's petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in the present
case) allege "the actions and recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission."
The following allegations of the respondent's petition duly outlined the actions she had
taken and the frustrations she encountered, thus compelling her to file her petition.

xxxx

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student, Arsimin Kunnong;

xxxx

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could [have been] abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;

12. Being scared with these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;

xxxx

15. According to reliable information received by the [respondent], subject Engr. Tagitis

is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;

xxxx

17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband,
but [the respondent's] request and pleadings failed to produce any positive results

xxxx

20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in
Camp Crame, Quezon City, and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from friends and
relatives only to try complying to the different suggestions of these police officers,
despite of which, her efforts produced no positive results up to the present time;

xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [respondent] has no other plain, speedy and adequate
remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal
clutches of [the petitioners], their intelligence operatives and the like which are in total
violation of the subject's human and constitutional rights, except the issuance of a WRIT
OF AMPARO.

Based on these considerations, we rule that the respondent's petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had every
reason to proceed with its consideration of the case.

The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the
Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the
historical context of the writ and enforced disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitler's Nact und Nebel Erlass or Night and Fog Decree of December 7,
1941.[82] The Third Reich's Night and Fog Program, a State policy, was directed at
persons in occupied territories "endangering German security"; they were transported
secretly to Germany where they disappeared without a trace. In order to maximize the
desired intimidating effect, the policy prohibited government officials from providing
information about the fate of these targeted persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and

outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were
reported to have "disappeared" during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an international concern
when the world noted its widespread and systematic use by State security forces in that
continent under Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s.
The escalation of the practice saw political activists secretly arrested, tortured, and killed
as part of governments' counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American media standardized the
term "disappearance" to describe the phenomenon. The victims of enforced
disappearances were called the "desaparecidos,"[86] which literally means the
"disappeared ones."[87] In general, there are three different kinds of "disappearance" cases:

1) those of people arrested without witnesses or without positive identification of the

arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant and held in
complete isolation for weeks or months while their families are unable to discover their
whereabouts and the military authorities deny having them in custody until they
eventually reappear in one detention center or another; and

3) those of victims of "salvaging" who have disappeared until their lifeless bodies are
later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two categories,
[89]
 and 855 cases were recorded during the period of martial law from 1972 until 1986.
Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquino's term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of this number, 407 remain
missing, 108 surfaced alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos' term when only 87
cases were reported, while the three-year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-governmental organization,
reports that as of March 31, 2008, the records show that there were a total of 193 victims
of enforced disappearance under incumbent President Gloria M. Arroyo's administration.
The Commission on Human Rights' records show a total of 636 verified cases of enforced
disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced
alive, 62 were found dead, and 76 still have undetermined status.[90] Currently, the United
Nations Working Group on Enforced or Involuntary Disappearance[91] reports 619
outstanding cases of enforced or involuntary disappearances covering the period
December 1, 2007 to November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the "writ shall cover extralegal killings and
enforced disappearances or threats thereof."[93] We note that although the writ specifically
covers "enforced disappearances," this concept is neither defined nor penalized in this
jurisdiction. The records of the Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:[94]

JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate
a specific definition [for] extrajudicial killings and enforced disappearances. From that
definition, then we can proceed to formulate the rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: ... As things stand, there is no law penalizing extrajudicial
killings and enforced disappearances... so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced disappearances [to be covered
by the Rule] because our concept of killings and disappearances will define the
jurisdiction of the courts. So we'll have to agree among ourselves about the nature of
killings and disappearances for instance, in other jurisdictions, the rules only cover state
actors. That is an element incorporated in their concept of extrajudicial killings and
enforced disappearances. In other jurisdictions, the concept includes acts and omissions
not only of state actors but also of non state actors. Well, more specifically in the case of
the Philippines for instance, should these rules include the killings, the disappearances
which may be authored by let us say, the NPAs or the leftist organizations and others. So,
again we need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these terms in
the Rule. The Committee instead focused on the nature and scope of the concerns within
its power to address and provided the appropriate remedy therefor, mindful that an
elemental definition may intrude into the ongoing legislative efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now penalized
under the Revised Penal Code and special laws.[99] The simple reason is that the
Legislature has not spoken on the matter; the determination of what acts are criminal and
what the corresponding penalty these criminal acts should carry are matters of substantive
law that only the Legislature has the power to enact under the country's constitutional
scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-judicial killings
and enforced disappearances, however, the Supreme Court is not powerless to act under
its own constitutional mandate to promulgate "rules concerning the protection and
enforcement of constitutional rights, pleading, practice and procedure in all
courts,"[100] since extrajudicial killings and enforced disappearances, by their nature and
purpose, constitute State or private party violation of the constitutional rights of
individuals to life, liberty and security. Although the Court's power is strictly procedural
and as such does not diminish, increase or modify substantive rights, the legal protection
that the Court can provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the public
authorities to act on actual or threatened violations of constitutional rights. To state the
obvious, judicial intervention can make a difference - even if only procedurally - in a
situation when the very same investigating public authorities may have had a hand in the
threatened or actual violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we do not rule
on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal courts
based on our existing penal laws. Our intervention is in determining whether an enforced
disappearance has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies to address it. The
burden for the public authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of indirect contempt from this
Court when governmental efforts are less than what the individual situations require.
The second is to address the disappearance, so that the life of the victim is preserved and
his or her liberty and security restored. In these senses, our orders and directives relative
to the writ are continuing efforts that are not truly terminated until the extrajudicial
killing or enforced disappearance is fully addressed by the complete determination of the
fate and the whereabouts of the victim, by the production of the disappeared person and
the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.

Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced disappearance is

considered a flagrant violation of human rights.[101] It does not only violate the right to
life, liberty and security of the desaparecido; it affects their families as well through the
denial of their right to information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be "a double form of torture,"
with "doubly paralyzing impact for the victims," as they "are kept ignorant of their own
fates, while family members are deprived of knowing the whereabouts of their detained
loved ones" and suffer as well the serious economic hardship and poverty that in most
cases follow the disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of "Disappeared Persons" in

December 1978 under Resolution 33/173. The Resolution expressed the General
Assembly's deep concern arising from "reports from various parts of the world relating to
enforced or involuntary disappearances," and requested the "UN Commission on Human
Rights to consider the issue of enforced disappearances with a view to making
appropriate recommendations."[103]

In 1992, in response to the reality that the insidious practice of enforced disappearance
had become a global phenomenon, the UN General Assembly adopted the Declaration
on the Protection of All Persons from Enforced Disappearance (Declaration).[104] This
Declaration, for the first time, provided in its third preambular clause a working
description of enforced disappearance, as follows:

Deeply concerned that in many countries, often in a persistent manner, enforced

disappearances occur, in the sense that persons are arrested, detained or abducted
against their will or otherwise deprived of their liberty by officials of different
branches or levels of Government, or by organized groups or private individuals
acting on behalf of, or with the support, direct or indirect, consent or acquiescence
of the Government, followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation of their
liberty, which places such persons outside the protection of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).[105] The Convention was opened for signature in Paris, France on February
6, 2007.[106] Article 2 of the Convention defined enforced disappearance as follows:

For the purposes of this Convention, "enforced disappearance" is considered to be the

arrest, detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place such
a person outside the protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a right
not to be subject to enforced disappearance[107] and that this right is non-derogable.
[108]
 It provides that no one shall be subjected to enforced disappearance under any
circumstances, be it a state of war, internal political instability, or any other public
emergency. It obliges State Parties to codify enforced disappearance as an offense
punishable with appropriate penalties under their criminal law.[109] It also recognizes the
right of relatives of the disappeared persons and of the society as a whole to know the
truth on the fate and whereabouts of the disappeared and on the progress and results of
the investigation.[110] Lastly, it classifies enforced disappearance as a continuing offense,
such that statutes of limitations shall not apply until the fate and whereabouts of the
victim are established.[111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance as a
crime. The absence of a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every enforced disappearance is a
violation of the constitutional rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound
by its Charter and by the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the Philippines pledged
to "promote universal respect for, and observance of, human rights and fundamental
freedoms for all without distinctions as to race, sex, language or religion."[112] Although
no universal agreement has been reached on the precise extent of the "human rights and
fundamental freedoms" guaranteed to all by the Charter,[113] it was the UN itself that
issued the Declaration on enforced disappearance, and this Declaration states: [114]
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial
of the purposes of the Charter of the United Nations and as a grave and flagrant
violation of human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights and reaffirmed and developed in international
instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a
UN Declaration, the ban on enforced disappearance cannot but have its effects on the
country, given our own adherence to "generally accepted principles of international law
as part of the law of the land."[115]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v.
Duque III,[116] we held that:

Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that
an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic
law. [Emphasis supplied]

We characterized "generally accepted principles of international law" as norms of general

or customary international law that are binding on all states. We held further:[117]

[G]enerally accepted principles of international law, by virtue of the incorporation clause

of the Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. The classical formulation in international law sees those customary
rules accepted as binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the part of States; and
a psychological element known as the opinion juris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the
original]

The most widely accepted statement of sources of international law today is Article 38(1)
of the Statute of the International Court of Justice, which provides that the Court shall
apply "international custom, as evidence of a general practice accepted as law." [118] The
material sources of custom include State practice, State legislation, international and
national judicial decisions, recitals in treaties and other international instruments, a
pattern of treaties in the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.[119] Sometimes referred to as
"evidence" of international law,[120] these sources identify the substance and content of the
obligations of States and are indicative of the "State practice" and "opinio juris"
requirements of international law.[121] We note the following in these respects:

First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention on
Enforced Disappearance of Persons in June 1994.[122] State parties undertook under this
Convention "not to practice, permit, or tolerate the forced disappearance of persons, even
in states of emergency or suspension of individual guarantees."[123] One of the key
provisions includes the States' obligation to enact the crime of forced disappearance in
their respective national criminal laws and to establish jurisdiction over such cases when
the crime was committed within their jurisdiction, when the victim is a national of that
State, and "when the alleged criminal is within its territory and it does not proceed to
extradite him," which can be interpreted as establishing universal jurisdiction among the
parties to the Inter-American Convention.[124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-
American Convention and have defined activities involving enforced disappearance to be
criminal.[125]

Second, in Europe, the European Convention on Human Rights has no explicit provision
dealing with the protection against enforced disappearance. The European Court of
Human Rights (ECHR), however, has applied the Convention in a way that provides
ample protection for the underlying rights affected by enforced disappearance through the
Convention's Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5
on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and
Article 13 on the right to an effective remedy. A leading example demonstrating the
protection afforded by the European Convention is Kurt v. Turkey,[126] where the ECHR
found a violation of the right to liberty and security of the disappeared person when the
applicant's son disappeared after being taken into custody by Turkish forces in the
Kurdish village of Agilli in November 1993. It further found the applicant (the
disappeared person's mother) to be a victim of a violation of Article 3, as a result of the
silence of the authorities and the inadequate character of the investigations undertaken.
The ECHR also saw the lack of any meaningful investigation by the State as a violation
of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as part
of customary international law is recognized in the most recent edition of Restatement of
the Law: The Third,[128] which provides that "[a] State violates international law if, as a
matter of State policy, it practices, encourages, or condones... (3) the murder or causing
the disappearance of individuals."[129] We significantly note that in a related matter that
finds close identification with enforced disappearance - the matter of torture - the United
States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary international
law. The court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can
no longer contend that they do not know what human rights they promised in the Charter
to promote." Moreover, a U.N. Declaration is, according to one authoritative definition,
"a formal and solemn instrument, suitable for rare occasions when principles of great and
lasting importance are being enunciated." Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the dichotomy of `binding
treaty' against `non-binding pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an expectation of adherence,
and "insofar as the expectation is gradually justified by State practice, a declaration may
by custom become recognized as laying down rules binding upon the States." Indeed,
several commentators have concluded that the Universal Declaration has become, in toto,
a part of binding, customary international law. [Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the

International Convention on Civil and Political Rights (ICCPR), to which the Philippines
is both a signatory and a State Party, the UN Human Rights Committee, under the Office
of the High Commissioner for Human Rights, has stated that the act of enforced
disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman
or degrading treatment or punishment) and 9 (right to liberty and security of the person)
of the ICCPR, and the act may also amount to a crime against humanity. [131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as
crimes against humanity,[132] i.e., crimes "committed as part of a widespread or systematic
attack against any civilian population, with knowledge of the attack." While more than
100 countries have ratified the Rome Statute,[133] the Philippines is still merely a signatory
and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been
incorporated in the statutes of other international and hybrid tribunals, including Sierra
Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the
Extraordinary Chambers in the Courts of Cambodia.[134] In addition, the implementing
legislation of State Parties to the Rome Statute of the ICC has given rise to a number of
national criminal provisions also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the Convention on

enforced disappearance (or by the specific terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, the above recital shows
that enforced disappearance as a State practice has been repudiated by the
international community, so that the ban on it is now a generally accepted principle
of international law, which we should consider a part of the law of the land, and
which we should act upon to the extent already allowed under our laws and the
international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human Rights,
the ICCPR and the International Convention on Economic, Social and Cultural Rights
(ICESR) may be infringed in the course of a disappearance:[136]

1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment
or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:

Article 2

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to develop
the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.
[Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to
an effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant

rights, States Parties must ensure that individuals also have accessible and effective
remedies to vindicate those rights... The Committee attaches importance to States
Parties' establishing appropriate judicial and administrative mechanisms for addressing
claims of rights violations under domestic law... Administrative mechanisms are
particularly required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and effectively through independent
and impartial bodies. A failure by a State Party to investigate allegations of violations
could in and of itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective remedy. [Emphasis
supplied]

The UN Human Rights Committee further stated in the same General Comment No. 31
that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR
violations could in and of itself give rise to a separate breach of the Covenant, thus: [138]

18. Where the investigations referred to in paragraph 15 reveal violations of certain

Covenant rights, States Parties must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal under
either domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced
disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity
for these violations, a matter of sustained concern by the Committee, may well be an
important contributing element in the recurrence of the violations. When committed as
part of a widespread or systematic attack on a civilian population, these violations of the
Covenant are crimes against humanity (see Rome Statute of the International Criminal
Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to

security of persons is a guarantee of the protection of one's right by the government, held
that:

The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when they
are under threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez
Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the "right to

security" not only as a prohibition on the State against arbitrary deprivation of liberty, but
also as the imposition of a positive duty to afford protection to the right to liberty. The
Court notably quoted the following ECHR ruling:

[A]ny deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities
to take effective measures to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an arguable claim that a person has
been taken into custody and has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo,
which the Court made effective on October 24, 2007. Although the Amparo Rule still has
gaps waiting to be filled through substantive law, as evidenced primarily by the lack of a
concrete definition of "enforced disappearance," the materials cited above, among
others, provide ample guidance and standards on how, through the medium of
the Amparo Rule, the Court can provide remedies and protect the constitutional
rights to life, liberty and security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of proof
required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties
presented by enforced disappearance cases; these difficulties form part of the setting that
the implementation of the Amparo Rule shall encounter.

These difficulties largely arise because the State itself - the party whose involvement is
alleged - investigates enforced disappearances. Past experiences in other jurisdictions
show that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.[141] Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons acting under some
form of governmental authority. In many countries the units that plan, implement and
execute the program are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent any interference by
the "legal" police forces. These authorities take their victims to secret detention centers
where they subject them to interrogation and torture without fear of judicial or other
controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their
own lives.[143] We have had occasion to note this difficulty in Secretary of Defense v.
Manalo[144] when we acknowledged that "where powerful military officers are implicated,
the hesitation of witnesses to surface and testify against them comes as no surprise."

Second, deliberate concealment of pertinent evidence of the disappearance is a

distinct possibility; the central piece of evidence in an enforced disappearance - i.e.,
the corpus delicti or the victim's body - is usually concealed to effectively thwart the start
of any investigation or the progress of one that may have begun.[145] The problem for the
victim's family is the State's virtual monopoly of access to pertinent evidence. The Inter-
American Court of Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate use
of the State's power to destroy the pertinent evidence. The IACHR described the
concealment as a clear attempt by the State to commit the perfect crime. [147]

Third is the element of denial; in many cases, the State authorities deliberately deny that
the enforced disappearance ever occurred.[148] "Deniability" is central to the policy of
enforced disappearances, as the absence of any proven disappearance makes it easier to
escape the application of legal standards ensuring the victim's human rights.
[149]
 Experience shows that government officials typically respond to requests for
information about desaparecidos by saying that they are not aware of any disappearance,
that the missing people may have fled the country, or that their names have merely been
invented.[150]

These considerations are alive in our minds, as these are the difficulties we confront, in
one form or another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding
and the degree and burden of proof the parties to the case carry, as follows:

Section 13. Summary Hearing. The hearing on the petition shall be summary. However,
the court, justice or judge may call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and admissions from the parties.

xxxx

Section 17. Burden of Proof and Standard of Diligence Required. - The parties shall
establish their claims by substantial evidence.

The respondent who is a private individual must prove that ordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.

The respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed or evade responsibility or liability.

Section 18. Judgment. - ... If the allegations in the petition are proven by substantial

evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]

These characteristics - namely, of being summary and the use of substantial evidence as
the required level of proof (in contrast to the usual preponderance of evidence or proof
beyond reasonable doubt in court proceedings) - reveal the clear intent of the framers of
the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations. The standard of diligence required - the duty
of public officials and employees to observe extraordinary diligence - point, too, to the
extraordinary measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and enforced
disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the
substance and form requirements of a Writ of Amparo petition, as discussed above, and
prove the allegations by substantial evidence. Once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the standard of
diligence required. The rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation of the victim's
constitutional rights to life, liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the Court
its first opportunity to define the substantial evidence required to arrive at a valid decision
in administrative proceedings. To directly quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. [citations
omitted] The statute provides that `the rules of evidence prevailing in courts of law and
equity shall not be controlling.' The obvious purpose of this and similar provisions is to
free administrative boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. [citations omitted] But this assurance of a
desirable flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Court's first petition for a Writ
of Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary nature
of Amparo proceedings. We said:

The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the

unique difficulties presented by the nature of enforced disappearances, heretofore
discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be
given a chance to achieve its objectives. These evidentiary difficulties compel the Court
to adopt standards appropriate and responsive to the circumstances, without transgressing
the due process requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR - faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez'
disappearance - adopted a relaxed and informal evidentiary standard, and established the
rule that presumes governmental responsibility for a disappearance if it can be proven
that the government carries out a general practice of enforced disappearances and the
specific case can be linked to that practice.[154] The IACHR took note of the realistic fact
that enforced disappearances could be proven only through circumstantial or indirect
evidence or by logical inference; otherwise, it was impossible to prove that an individual
had been made to disappear. It held:

130. The practice of international and domestic courts shows that direct evidence,
whether testimonial or documentary, is not the only type of evidence that may be
legitimately considered in reaching a decision. Circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to conclusions consistent with
the facts.

131. Circumstantial or presumptive evidence is especially important in allegations of

disappearances, because this type of repression is characterized by an attempt to
suppress all information about the kidnapping or the whereabouts and fate of the
victim. [Emphasis supplied]

In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out
by agents who acted under cover of public authority, the IACHR relied on
circumstantial evidence including the hearsay testimony of Zenaida Velásquez, the
victim's sister, who described Manfredo's kidnapping on the basis of conversations she
had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad
daylight. She also told the Court that a former Honduran military official had announced
that Manfredo was kidnapped by a special military squadron acting under orders of the
Chief of the Armed Forces.[155] The IACHR likewise considered the hearsay testimony of
a second witness who asserted that he had been told by a Honduran military officer about
the disappearance, and a third witness who testified that he had spoken in prison to a man
who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances
that enforced disappearance cases pose to the courts; to have an effective remedy, the
standard of evidence must be responsive to the evidentiary difficulties faced. On the one
hand, we cannot be arbitrary in the admission and appreciation of evidence, as
arbitrariness entails violation of rights and cannot be used as an effective counter-
measure; we only compound the problem if a wrong is addressed by the commission of
another wrong. On the other hand, we cannot be very strict in our evidentiary rules and
cannot consider evidence the way we do in the usual criminal and civil cases; precisely,
the proceedings before us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the substantial evidence
rule, we must observe flexibility in considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in
their totality, and to consider any evidence otherwise inadmissible under our usual rules
to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason - i.e., to the relevance of
the evidence to the issue at hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic
minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not at
all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness[157] is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a child describing any
act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject
to certain prerequisites and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of specified subjective and
objective considerations that provide sufficient indicia of reliability of the child witness.
[158]
 These requisites for admission find their counterpart in the present case under the
above-described conditions for the exercise of flexibility in the consideration of evidence,
including hearsay evidence, in extrajudicial killings and enforced disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced disappearance within
the meaning of this term under the UN Declaration we have cited?

The Convention defines enforced disappearance as "the arrest, detention, abduction or

any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the protection
of the law."[159] Under this definition, the elements that constitute enforced disappearance
are essentially fourfold:[160]

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;

(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of

the disappeared person; and

(d) placement of the disappeared person outside the protection of the law. [Emphasis
supplied]

We find no direct evidence indicating how the victim actually disappeared. The direct

evidence at hand only shows that Tagitis went out of the ASY Pension House after
depositing his room key with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned - the petitioner, Tagitis' colleagues
and even the police authorities - is that Tagistis disappeared under mysterious
circumstances and was never seen again. The respondent injected the causal element in
her petition and testimony, as we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga

abducted or arrested Tagitis. If at all, only the respondent's allegation that Tagistis was
under CIDG Zamboanga custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of information as her bases
for her allegation that Tagistis had been placed under government custody (in contrast
with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later
identified as Col. Ancanan), who occupied a high position in the military and who
allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as
both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col.
Ancanan gave them any information that Tagitis was in government custody. Col.
Ancanan, for his part, admitted the meeting with the respondent but denied giving her any
information about the disappearance.

The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City.
To quote the relevant portions of the respondent's testimony:

Q: Were you able to speak to other military officials regarding the whereabouts of your
husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told
me that my husband is being abducted [sic] because he is under custodial
investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema'ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in
that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports
are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma'am.
Q: And a certain Col. Kasim told you that your husband was abducted and under
 custodial investigation?
A: Yes, ma'am.
Q: And you mentioned that he showed you a report?
A: Yes, ma'am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, ma'am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma'am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma'am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, ma'am.
[162]
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and
what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people na
parang mga terorista na mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya
ng gamot, ma'am."[163]
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by the
CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun
na effort ko because I know that they would deny it, ma'am.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony
that her husband was abducted and held under custodial investigation by the PNP-CIDG
Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City sometime November 24,
2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can
furnish us the location of Engr. Tagitis. And he was reading this report. He told us that
Engr. Tagitis is in good hands. He is with the military, but he is not certain
whether he is with the AFP or PNP. He has this serious case. He was charged of
terrorism because he was under surveillance from January 2007 up to the time
that he was abducted. He told us that he was under custodial investigation. As I've
said earlier, he was seen under surveillance from January. He was seen talking to
Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged
with terrorism. He was seen carrying boxes of medicines. Then we asked him how
long will he be in custodial investigation. He said until we can get some information.
But he also told us that he cannot give us that report because it was a raw report. It was
not official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of
paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don't know if it was
computerized but I'm certain that it was typewritten. I'm not sure if it used computer,
fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a
summary form?
A: Sometimes he was glancing to the report and talking to us, sir.[165]
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I've mentioned, we just waited because that raw information that he
was reading to us [sic] after the custodial investigation, Engineer Tagitis will be
released. [Emphasis supplied][166]

Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed in
his testimony that the "informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also stressed that the information
he provided the respondent was merely a "raw report" from "barangay intelligence" that
still needed confirmation and "follow up" as to its veracity.[167]

To be sure, the respondent's and Mrs. Talbin's testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a
"military officer" who told her that "her husband is being abducted because he is under
custodial investigation because he is allegedly `parang liason ng J.I.'" The petitioners
also noted that "Mrs. Talbin's testimony imputing certain statements to Sr. Supt. Kasim
that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP
is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would
certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to us is
that the petitioners never really steadfastly disputed or presented evidence to refute the
credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that should not affect the
credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material
points.[168] We note, for example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather
than prevarication[169] and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot but
generate suspicion that the material circumstances they testified to were integral parts of a
well thought of and prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in enforced

disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informant's letter, that Tagitis, reputedly a
liaison for the JI and who had been under surveillance since January 2007, was "in
good hands" and under custodial investigation for complicity with the JI after he
was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik
Islam" charged with terrorism. The respondent's and Mrs. Talbin's testimonies cannot
simply be defeated by Col. Kasim's plain denial and his claim that he had destroyed his
informant's letter, the critical piece of evidence that supports or negates the parties'
conflicting claims. Col. Kasim's admitted destruction of this letter - effectively, a
suppression of this evidence - raises the presumption that the letter, if produced, would be
proof of what the respondent claimed.[171] For brevity, we shall call the evidence of what
Col. Kasim reported to the respondent to be the "Kasim evidence."

Given this evidence, our next step is to decide whether we can accept this evidence, in
lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he was held for custodial
investigation. We note in this regard that Col. Kasim was never quoted to have said that
the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only
implies government intervention through the use of the term "custodial investigation,"
and does not at all point to CIDG Zamboanga as Tagitis' custodian.

Strictly speaking, we are faced here with a classic case of hearsay evidence - i.e.,
evidence whose probative value is not based on the personal knowledge of the witnesses
(the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some
other person not on the witness stand (the informant).[172]

To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge - as the petitioners effectively suggest - that in the
absence of any direct evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement that the Amparo Rule
- despite its terms - is ineffective, as it cannot allow for the special evidentiary difficulties
that are unavoidably present in Amparo situations, particularly in extrajudicial killings
and enforced disappearances. The Amparo Rule was not promulgated with this intent or
with the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from local and
international experiences in extrajudicial killings and enforced disappearances, as the
situation may require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these difficulties
demand.

To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to determine
the correct import of every piece of evidence - even of those usually considered
inadmissible under the general rules of evidence - taking into account the surrounding
circumstances and the test of reason that we can use as basic minimum admissibility
requirement. In the present case, we should at least determine whether the Kasim
evidence before us is relevant and meaningful to the disappearance of Tagistis and
reasonably consistent with other evidence in the case.

The evidence about Tagitis' personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to
Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a
return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records
indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof.
Matli, early on informed the Jolo police that Tagitis may have taken funds given to him
in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking
away money held in trust, although he confirmed that the IDB was seeking assistance in
locating funds of IDB scholars deposited in Tagitis' personal account. Other than these
pieces of evidence, no other information exists in the records relating to the personal
circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal circumstances. While

the Amparo petition recited that he was taken away by "burly men believed to be police
intelligence operatives," no evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m.
of October 30, 2007 - the day he arrived in Jolo - and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct evidence on
the above aspects of the case, as it supplies the gaps that were never looked into and
clarified by police investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the element of
participation by agents of the State and thus brings into question how the State reacted to
the disappearance.

Denials on the part of the police authorities, and frustration on the part of the respondent,
characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong
that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the
government. No evidence was ever offered on whether there was active Jolo police
investigation and how and why the Jolo police arrived at this conclusion. The
respondent's own inquiry in Jolo yielded the answer that he was not missing but was with
another woman somewhere. Again, no evidence exists that this explanation was arrived
at based on an investigation. As already related above, the inquiry with Col. Ancanan in
Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was
only the inquiry from Col. Kasim that yielded positive results. Col. Kasim's story,
however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest
or abduction), without identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasim's story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged
with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation ever pursued these
leads. Notably, Task Force Tagitis to which this information was relayed did not appear
to have lifted a finger to pursue these aspects of the case.

More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent
to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and
these reports merely reiterated the open-ended initial report of the disappearance. The
CIDG directed a search in all of its divisions with negative results. These, to the PNP
Chief, constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General
Edgardo M. Doromal, for his part, also reported negative results after searching "all
divisions and departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . .
and after a diligent and thorough research, records show that no such person is being
detained in the CIDG or any of its department or divisions." PNP-PACER Chief PS Supt.
Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R.
Goltiao did no better in their affidavits-returns, as they essentially reported the results of
their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA constituted
Task Force Tagitis, with specific directives on what to do. The negative results reflected
in the Returns on the writ were again replicated during the three hearings the CA
scheduled. Aside from the previously mentioned "retraction" that Prof. Matli made to
correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim
reiterated in his testimony that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was no basis to conclude that the CIDG or
any police unit had anything to do with the disappearance of Tagitis; he likewise
considered it premature to conclude that Tagitis simply ran away with the money in his
custody. As already noted above, the Task Force notably did not pursue any investigation
about the personal circumstances of Tagitis, his background in relation to the IDB and the
background and activities of this Bank itself, and the reported sighting of Tagistis with
terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever
been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of
the "assets" who are indispensable in investigations of this nature. These omissions and
negative results were aggravated by the CA findings that it was only as late as January
28, 2008 or three months after the disappearance that the police authorities requested for
clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was
not served, despite the fact that he was designated as Ajirim's replacement in the latter's
last post. Thus, Col. Kasim was not then questioned. No investigation - even an internal
one - appeared to have been made to inquire into the identity of Col. Kasim's "asset" and
what he indeed wrote.

We glean from all these pieces of evidence and developments a consistency in the
government's denial of any complicity in the disappearance of Tagitis, disrupted
only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even
Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was
under custodial investigation for complicity in terrorism. Another distinctive trait that
runs through these developments is the government's dismissive approach to the
disappearance, starting from the initial response by the Jolo police to Kunnong's initial
reports of the disappearance, to the responses made to the respondent when she herself
reported and inquired about her husband's disappearance, and even at Task Force Tagitis
itself.

As the CA found through Task Force Tagitis, the investigation was at best haphazard
since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their various
departments and divisions. To point out the obvious, if the abduction of Tagitis was a
"black" operation because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too, would not be detained in
the usual police or CIDG detention places. In sum, none of the reports on record
contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the personnel
and units they directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities undertaken to search
for Tagitis. Indisputably, the police authorities from the very beginning failed to come up
to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasim's disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard investigations
cannot but point to this conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they
already knew of the disappearance? Would not an in-depth and thorough investigation
that at least credibly determined the fate of Tagitis be a feather in the government's cap
under the circumstances of the disappearance? From this perspective, the evidence and
developments, particularly the Kasim evidence, already establish a concrete case of
enforced disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,[173] the evidence at hand and the developments
in this case confirm the fact of the enforced disappearance and government complicity,
under a background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the protection of
the law - a situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same, the
facts of this case run very close to those of Timurtas v. Turkey,[174] a case decided by
ECHR. The European tribunal in that case acted on the basis of the photocopy of a "post-
operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and
later detained by agents (gendarmes) of the government of Turkey. The victim's father in
this case brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and security of
a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish
Workers' Party (PKK) in the Silopi region. The petition was filed in southeast Turkey
nearly six and one half years after the apprehension. According to the
father, gendarmes first detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness evidence of the apprehension
or subsequent detainment, the applicant presented evidence corroborating his
version of events, including a photocopy of a post-operation report signed by the
commander of gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK in the Silopi region. On this
basis, Turkey was held responsible for Abdulvahap's enforced disappearance.

Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the unique
facts and developments of this case - we believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these
organizations together with Col. Kasim, should be held fully accountable for the
enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law,"[175] specifies the PNP as the governmental office
with the mandate "to investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG, as
Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative
arm" of the PNP and is mandated to "investigate and prosecute all cases involving
violations of the Revised Penal Code, particularly those considered as heinous
crimes."[176] Under the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised Penal Code and operates
against organized crime groups, unless the President assigns the case exclusively to the
National Bureau of Investigation (NBI).[177] No indication exists in this case showing that
the President ever directly intervened by assigning the investigation of Tagitis'
disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who
were remiss in their duties when the government completely failed to exercise the
extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the CA
may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-
CIDG shall initially present to the CA a plan of action for further investigation,
periodically reporting the detailed results of its investigation to the CA for its
consideration and action. On behalf of this Court, the CA shall pass upon: the need for
the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated
in this Decision and as further CA hearings may indicate; the petitioners' submissions; the
sufficiency of their investigative efforts; and submit to this Court a quarterly
report containing its actions and recommendations, copy furnished the petitioners and
the respondent, with the first report due at the end of the first quarter counted from the
finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigation. The CA shall submit its full report for the consideration of
this Court at the end of the 4th quarter counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners' petition for review

on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated
March 7, 2008 under the following terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis is an

enforced disappearance covered by the Rule on the Writ of Amparo;
 b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-
CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced
disappearance of Engineer Morced N. Tagitis;

c. Confirmation of the validity of the Writ of Amparo the Court of Appeals

issued;

d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its
Chief, directly responsible for the disclosure of material facts known to the
government and to their offices regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of proper investigations using
extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and

holding him accountable with the obligation to disclose information known
to him and to his "assets" in relation with the enforced disappearance of
Engineer Morced N. Tagitis;

f. Referring this case back to the Court of Appeals for appropriate

proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and the
PNP-CIDG shall initially present to the Court of Appeals a plan of action
for further investigation, periodically reporting their results to the Court of
Appeals for consideration and action;

g. Requiring the Court of Appeals to submit to this Court a quarterly report

with its recommendations, copy furnished the incumbent PNP and PNP-
CIDG Chiefs as petitioners and the respondent, with the first report due at
the end of the first quarter counted from the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision;

These directives and those of the Court of Appeals' made pursuant to this Decision shall
be given to, and shall be directly enforceable against, whoever may be the incumbent
Chiefs of the Philippine National Police and its Criminal Investigation and Detection
Group, under pain of contempt from this Court when the initiatives and efforts at
disclosure and investigation constitute less than the extraordinary diligence that the Rule
on the Writ of Amparo and the circumstances of this case demand. Given the unique
nature of Amparo cases and their varying attendant circumstances, these directives -
particularly, the referral back to and monitoring by the CA - are specific to this case and
are not standard remedies that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano,

Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.

EN BANC
[ A.C. No. 6470, July 08, 2014 ]
MERCEDITA DE JESUS, COMPLAINANT, VS. ATTY. JUVY MELL
SANCHEZ-MALIT, RESPONDENT.

RESOLUTION

SERENO, C.J.:

Before the Court is a disbarment complaint filed by Mercedita De Jesus (De Jesus)
against respondent Atty. Juvy Mell Sanchez-Malit (Sanchez-Malit) on the following
grounds: grave misconduct, dishonesty, malpractices, and unworthiness to become an
officer of the Court.

THE FACTS OF THE CASE

In the Affidavit-Complaint [1] filed by complainant before the Office of the Bar Confidant

on 23 June 2004, she alleged that on 1 March 2002, respondent had drafted and
notarized a Real Estate Mortgage of a public market stall that falsely named the former
as its absolute and registered owner. As a result, the mortgagee sued complainant for
perjury and for collection of sum of money. She claimed that respondent was a
consultant of the local government unit of Dinalupihan, Bataan, and was therefore
aware that the market stall was government-owned.

Prior thereto, respondent had also notarized two contracts that caused complainant
legal and financial problems. One contract was a lease agreement notarized by
respondent sometime in September 1999 without the signature of the lessees.
However, complainant only found out that the agreement had not been signed by the
lessees when she lost her copy and she asked for another copy from respondent. The
other contract was a sale agreement over a property covered by a Certificate of Land
Ownership Award (CLOA) which complainant entered into with a certain Nicomedes
Tala (Tala) on 17 February 1998. Respondent drafted and notarized said agreement, but
did not advise complainant that the property was still covered by the period within
which it could not be alienated.

In addition to the documents attached to her complaint, complainant subsequently

submitted three Special Powers of Attorney (SPAs) notarized by respondent and an
Affidavit of Irene Tolentino (Tolentino), complainant’s secretary/treasurer. The SPAs
were not signed by the principals named therein and bore only the signature of the
named attorney-in-fact, Florina B. Limpioso (Limpioso). Tolentino’s Affidavit
corroborated complainant’s allegations against respondent. [2]

On 4 August 2004, the Second Division of the Supreme Court issued a Resolution
requiring respondent to submit her comment on the Complaint within ten (10) days
from receipt of notice.[3]

In her Comment,[4] respondent explained that the mortgage contract was prepared in

the presence of complainant and that the latter had read it before affixing her signature.
However, complainant urgently needed the loan proceeds so the contract was hastily
done. It was only copied from a similar file in respondent’s computer, and the phrase
“absolute and registered owner” was inadvertently left unedited. Still, it should not be a
cause for disciplinary action, because complainant constructed the subject public
market stall under a “Build Operate and Transfer” contract with the local government
unit and, technically, she could be considered its owner. Besides, there had been a prior
mortgage contract over the same property in which complainant was represented as
the property’s absolute owner, but she did not complain. Moreover, the cause of the
perjury charge against complainant was not the representation of herself as owner of
the mortgaged property, but her guarantee that it was free from all liens and
encumbrances. The perjury charge was even dismissed, because the prosecutor found
that complainant and her spouse had, indeed, paid the debt secured with the previous
mortgage contract over the same market stall.

With respect to the lease agreement, respondent countered that the document
attached to the Affidavit-Complaint was actually new. She gave the court’s copy of the
agreement to complainant to accommodate the latter’s request for an extra copy. Thus,
respondent prepared and notarized a new one, relying on complainant’s assurance that
the lessees would sign it and that it would be returned in lieu of the original copy for the
court. Complainant, however, reneged on her promise.

As regards the purchase agreement of a property covered by a CLOA, respondent

claimed that complainant was an experienced realty broker and, therefore, needed no
advice on the repercussions of that transaction. Actually, when the purchase agreement
was notarized, complainant did not present the CLOA, and so the agreement mentioned
nothing about it. Rather, the agreement expressly stated that the property was the
subject of a case pending before the Department of Agrarian Reform Adjudication Board
(DARAB); complainant was thus notified of the status of the subject property. Finally,
respondent maintained that the SPAs submitted by complainant as additional evidence
were properly notarized. It can be easily gleaned from the documents that the attorney-
in-fact personally appeared before respondent; hence, the notarization was limited to
the former’s participation in the execution of the document. Moreover, the
acknowledgment clearly stated that the document must be notarized in the principal’s
place of residence.

An exchange of pleadings ensued after respondent submitted her Comment. After her
rejoinder, complainant filed an Urgent Ex-Parte Motion for Submission of Additional
Evidence.[5] Attached thereto were copies of documents notarized by respondent,
including the following: (1) an Extra Judicial Deed of Partition which referred to the SPAs
naming Limpioso as attorney-in-fact; (2) five SPAs that lacked the signatures of either
the principal or the attorney-in-fact; (3) two deeds of sale with incomplete signatures of
the parties thereto; (4) an unsigned Sworn Statement; (5) a lease contract that lacked
the signature of the lessor; (6) five unsigned Affidavits; (7) an unsigned insurance claim
form (Annual Declaration by the Heirs); (8) an unsigned Invitation Letter to a potential
investor in Japan; (9) an unsigned Bank Certification; and (10) an unsigned Consent to
Adoption.

After the mandatory conference and hearing, the parties submitted their respective
Position Papers.[6] Notably, respondent’s Position Paper did not tackle the additional
documents attached to complainant’s Urgent Ex Parte Motion.

THE FINDINGS OF THE IBP

In his 15 February 2008 Report, IBP Investigating Commissioner Leland R. Villadolid, Jr.
recommended the immediate revocation of the Notarial Commission of respondent and
her disqualification as notary public for two years for her violation of her oath as such by
notarizing documents without the signatures of the parties who had purportedly
appeared before her. He accepted respondent’s explanations with respect to the lease
agreement, sale contract, and the three SPAs pertaining to Limpioso. However, he found
that the inaccurate crafting of the real estate mortgage contract was a sufficient basis to
hold respondent liable for violation of Canon 18[7] and Rule 18.03[8] of the Code of
Professional Responsibility. Thus, he also recommended that she be suspended from
the practice of law for six months.[9]

The IBP Board of Governors, in its Resolution No. XVIII-2008-245 dated 22 May 2008,
unanimously adopted and approved the Report and Recommendation of the
Investigating Commissioner, with the modification that respondent be suspended from
the practice of law for one year.[10]

Respondent filed her first Motion for Reconsideration[11] and Second Motion for
Reconsideration.[12] She maintained that the additional documents submitted by
complainant were inadmissible, as they were obtained without observing the
procedural requisites under Section 4, Rule VI of Adm. No. 02-08-13 SC (2004 Rules on
Notarial Practice).[13] Moreover, the Urgent Ex Parte Motion of complainant was actually
a supplemental pleading, which was prohibited under the rules of procedure of the
Committee on Bar Discipline; besides, she was not the proper party to question those
documents. Hence, the investigating commissioner should have expunged the
documents from the records, instead of giving them due course. Respondent also
prayed that mitigating circumstances be considered, specifically the following: absence
of prior disciplinary record; absence of dishonest or selfish motive; personal and
emotional problems; timely good-faith effort to make restitution or to rectify the
consequences of her misconduct; full and free disclosure to the disciplinary board or
cooperative attitude toward the proceedings; character or reputation; remorse; and
remoteness of prior offenses.

The IBP Board of Governors, in its Resolution No. XX-2012-119 dated 10 March 2012,
denied respondent’s motion for reconsideration for lack of substantial reason to justify a
reversal of the IBP’s findings.[14]

Pursuant to Rule 139-B of the Rules of Court, Director for Bar Discipline Pura Angelica Y.
Santiago – through a letter addressed to then acting Chief Justice Antonio T. Carpio –
transmitted the documents pertaining to the disbarment Complaint against respondent.
[15]

THE COURT’S RULING

After carefully reviewing the merits of the complaint against respondent and the parties’
submissions in this case, the Court hereby modifies the findings of the IBP.

Before going into the substance of the charges against respondent, the Court shall first
dispose of some procedural matters raised by respondent.

Respondent argues that the additional documents submitted in evidence by

complainant are inadmissible for having been obtained in violation of Section 4, Rule VI
of the 2004 Rules on Notarial Practice. A comparable argument was raised in Tolentino
v. Mendoza,[16] in which the respondent therein opposed the admission of the birth
certificates of his illegitimate children as evidence of his grossly immoral conduct,
because those documents were obtained in violation Rule 24, Administrative Order No.
1, Series of 1993.[17] Rejecting his argument, the Court reasoned as follows:

Section 3, Rule 128 of the Revised Rules on Evidence provides that “evidence is
admissible when it is relevant to the issue and is not excluded by the law or these rules.”
There could be no dispute that the subject birth certificates are relevant to the issue.
The only question, therefore, is whether the law or the rules provide for the
inadmissibility of said birth certificates allegedly for having been obtained in violation of
Rule 24, Administrative Order No. 1, series of 1993.

Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions
against persons violating the rule on confidentiality of birth records, but nowhere does
it state that procurement of birth records in violation of said rule would render said
records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only
provides for the exclusion of evidence if it is obtained as a result of illegal searches and
seizures. It should be emphasized, however, that said rule against unreasonable
searches and seizures is meant only to protect a person from interference by the
government or the state. In People vs. Hipol, we explained that:
The Constitutional proscription enshrined in the Bill of Rights does not concern
itself with the relation between a private individual and another individual. It governs
the relationship between the individual and the State and its agents. The Bill of Rights
only tempers governmental power and protects the individual against any aggression
and unwarranted interference by any department of government and its agencies.
Accordingly, it cannot be extended to the acts complained of in this case. The alleged
"warrantless search" made by Roque, a co-employee of appellant at the treasurer's
office, can hardly fall within the ambit of the constitutional proscription on unwarranted
searches and seizures.

Consequently, in this case where complainants, as private individuals, obtained the

subject birth records as evidence against respondent, the protection against
unreasonable searches and seizures does not apply.
Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised
Rules on Evidence do not provide for the exclusion from evidence of the birth
certificates in question, said public documents are, therefore, admissible and should be
properly taken into consideration in the resolution of this administrative case against
respondent.[18]

Similarly, the 2004 Rules on Notarial Law contain no provision declaring the
inadmissibility of documents obtained in violation thereof. Thus, the IBP correctly
considered in evidence the other notarized documents submitted by complainant as
additional evidence.

Respondent’s argument that the Urgent Ex-Parte Motion of complainant constitutes a

supplemental pleading must fail as well. As its very name denotes, a supplemental
pleading only serves to bolster or adds something to the primary pleading. Its usual
office is to set up new facts which justify, enlarge or change the kind of relief with
respect to the same subject matter as the controversy referred to in the original
complaint.[19] Accordingly, it cannot be said that the Urgent Ex-Parte Motion filed by
complainant was a supplemental pleading. One of her charges against respondent is
that the latter notarized incomplete documents, as shown by the SPAs and lease
agreement attached to the Affidavit-Complaint. Complainant is not legally barred from
submitting additional evidence to strengthen the basis of her complaint.

Going now into the substance of the charges against respondent, the Court finds that
she committed misconduct and grievously violated her oath as a notary public.

The important role a notary public performs cannot be overemphasized. The Court has
repeatedly stressed that notarization is not an empty, meaningless routinary act, but
one invested with substantive public interest. Notarization converts a private document
into a public document, making it admissible in evidence without further proof of its
authenticity. Thus, a notarized document is, by law, entitled to full faith and credit upon
its face. It is for this reason that a notary public must observe with utmost care the basic
requirements in the performance of his notarial duties; otherwise, the public's
confidence in the integrity of a notarized document would be undermined. [20]

Where the notary public admittedly has personal knowledge of a false statement or
information contained in the instrument to be notarized, yet proceeds to affix the
notarial seal on it, the Court must not hesitate to discipline the notary public accordingly
as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of
the notarization process may be undermined, and public confidence in notarial
documents diminished. [21] In this case, respondent fully knew that complainant was not
the owner of the mortgaged market stall. That complainant comprehended the
provisions of the real estate mortgage contract does not make respondent any less
guilty. If at all, it only heightens the latter’s liability for tolerating a wrongful act. Clearly,
respondent’s conduct amounted to a breach of Canon 1[22] and Rules 1.01[23] and
1.02[24] of the Code of Professional Responsibility.

Respondent’s explanation about the unsigned lease agreement executed by

complainant sometime in September 1999[25] is incredulous. If, indeed, her file copy of
the agreement bore the lessees’ signatures, she could have given complainant a
certified photocopy thereof. It even appears that said lease agreement is not a rarity in
respondent’s practice as a notary public. Records show that on various occasions from
2002 to 2004, respondent has notarized 22 documents that were either unsigned or
lacking signatures of the parties. Technically, each document maybe a ground for
disciplinary action, for it is the duty of a notarial officer to demand that a document be
signed in his or her presence.[26]

A notary public should not notarize a document unless the persons who signed it are the
very same ones who executed it and who personally appeared before the said notary
public to attest to the contents and truth of what are stated therein. [27] Thus, in
acknowledging that the parties personally came and appeared before her, respondent
also violated Rule 10.01[28] of the Code of Professional Responsibility and her oath as a
lawyer that she shall do no falsehood.[29]

Certainly, respondent is unfit to continue enjoying the solemn office of a notary public.
In several instances, the Court did not hesitate to disbar lawyers who were found to be
utterly oblivious to the solemnity of their oath as notaries public. [30] Even so, the rule is
that disbarment is meted out only in clear cases of misconduct that seriously affect the
standing and character of the lawyer as an officer of the court and the Court will not
disbar a lawyer where a lesser penalty will suffice to accomplish the desired end. [31] The
blatant disregard by respondent of her basic duties as a notary public warrants the less
severe punishment of suspension from the practice of law and perpetual disqualification
to be commissioned as a notary public.

WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of violating

Canon 1 and Rules 1.01, 1.02, and 10.01 of the Code of Professional Responsibility as
well as her oath as notary public. Hence, she is SUSPENDED from the practice of law
for ONE YEAR effective immediately. Her notarial commission, if still existing,
is IMMEDIATELY REVOKED and she is hereby PERPETUALLY DISQUALIFIED from being
commissioned as a notary public.

Let copies of this Resolution be entered into the personal records of respondent as a
member of the bar and furnished to the Bar Confidant, the Integrated Bar of the
Philippines, and the Court Administrator for circulation to all courts of the country for
their information and guidance.

No costs.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 181683, October 07, 2015 ]
LORENZO SHIPPING CORPORATION, PETITIONER, VS. NATIONAL
POWER CORPORATION, RESPONDENT.

[G.R. No. 184568]

NATIONAL POWER CORPORATION, PETITIONER, VS. LORENZO

SHIPPING CORPORATION, RESPONDENT.

DECISION
LEONEN, J.:

These consolidated Petitions for Review on Certiorari[1] are offshoots of the Court of

Appeals' disposition of CA-G.R. CV No. 76295. The Petition docketed as G.R.
No. 181683 was filed by Lorenzo Shipping Corporation (Lorenzo Shipping) while the
Petition docketed as G.R. No. 184568 was filed by National Power Corporation.

In its September 14, 2007 Decision,[2] the Court of Appeals reversed and set aside the
February 18, 2002 Decision of the Regional Trial Court and entered another judgment
ordering Lorenzo Shipping to pay National Power Corporation the amount of
P876,286.00 as actual damages and P50,000.00 as attorney's fees and expenses of
litigation.[3]

In its February 12, 2008 Amended Decision,[4] the Court of Appeals amended its
September 14, 2007 Decision to award National Power Corporation the amount of
P300,000.00 as temperate damages in lieu of the original award of P876,286.00 as actual
damages.

In its September 17, 2008 Resolution,[5] the Court of Appeals denied National Power
Corporation's Motion for Reconsideration.

The February 18, 2002 Decision[6] of the Regional Trial Court dismissed National Power
Corporation's Complaint for damages against Lorenzo Shipping.[7]

Lorenzo Shipping is the owner and operator of the commercial vessel MV Lorcon Luzon.
[8]
 National Power Corporation is the owner of Power Barge 104, "a non-propelled power
plant barge."[9]

On March 20, 1993, Power Barge 104 was berthed and stationed at the Makar Wharf in
General Santos City when the MV Lorcon Luzon "hit and rammed Power Barge 104." [10]

At the time of the incident, Captain Mariano Villarias (Captain Villarias) served as the
Master of the MV Lorcon Luzon. However, the MV Lorcon Luzon was then being
piloted by Captain Homer Yape (Captain Yape), a Harbor Pilot from the General Santos
City pilotage district.[11] As underscored by Lorenzo Shipping, the MV Lorcon Luzon was
under Captain Yape's pilotage as it was mandatory to yield navigational control to the
Harbor Pilot while docking.[12]

Testifying before the Board of Marine Inquiry, Captain Villarias recalled that while the
MV Lorcon Luzon was under Captain Yape's pilotage, he nevertheless
"always"[13] remained at the side of Captain Yape. He likewise affirmed that he heard and
knew of Captain Yape's orders, "because I have to repeat his order." [14]
As the MV Lorcon Luzon was docking, Captain Yape ordered the vessel to proceed
"slow ahead," making it move at the speed of about one (1) knot. As it moved closer to
dock, Captain Yape gave the order "dead slow ahead," making the vessel move even
slower. He then ordered the engine stopped.[15]

As the MV Lorcon Luzon moved "precariously close"[16] to the wharf, Captain Yape
ordered the vessel to move backward, i.e., go "slow astern," and subsequently "full
astern." Despite his orders, the engine failed to timely respond. Thus, Captain Yape
ordered the dropping of the anchor. Despite this, the MV Lorcon Luzon rammed into
Power Barge 104.[17]

Following this incident, Nelson Homena, Plant Manager of Power Barge 104, filed a
Marine Protest before the Board of Marine Inquiry. Captain Villarias also filed his own
Marine Protest. For his part, Captain Yape filed a Marine Accident Report. The Board of
Marine Inquiry conducted joint hearings on the Marine Protests and Captain Yape's
report.[18]

To forestall the prescription of its cause of action for damages, National Power
Corporation filed before the Quezon City Regional Trial Court a Complaint for Damages
against Lorenzo Shipping.[19] In this Complaint, National Power Corporation recalled the
damage resulting from the ramming, as follows:

4. Due to the force and impact of the ramming, the three (3) nylon ropes of 4 inches [sic]
diameter each securing the barge at the Makar Wharf-Philippines [sic] Ports Authority
Pier was instantaneously ripped off and the take [-] off tower of the barge swayed causing
flash over on the 69 KV line tripping the line and isolated General Santos City from the
Mindanao Grid. Consequently, the General Santos Power Plant, Power Barge 102,
interconnected with Power Barge 104, all tripped off causing total blackout in General
Santos City and its underlying areas;

5. Immediate investigation revealed that the ramming resulted to severe damage to

Ballast Tank No. 1 and metal deformation with approximate area of two (2) sq. meters.
The crack, 25 mm. [b]y 460 mm. [ojccurred two (2) meters above the crater line and
another one, 75 mm. by 310 mm. on the water line caused a leak of waste oil into the
sea . . .;

6. In addition to the physical damage caused to the Power Barge 104, plaintiff suffered
generation losses as a result of the tripping off of the line and the failure of Power Barge
104 to generate electricity immediately after the accident[.][20]

Lorenzo Shipping filed a Motion to Dismiss grounded on the Regional Trial Court's
alleged lack of jurisdiction over the subject matter and National Power Corporation's
failure to exhaust administrative remedies. Lorenzo Shipping underscored that the dispute
was supposedly within the jurisdiction of the Board of Marine Inquiry/Philippine Coast
Guard.[21] The Regional Trial Court denied Lorenzo Shipping's Motion to Dismiss.[22]

On November 7, 1997, Lorenzo Shipping filed its Answer. It emphasized that at the time
of the incident, the MV Lorcon Luzon was commandeered by an official Harbor Pilot to
whom it was "mandatory . . . to yield operational control";[23] thus, any liability should be
attributed to the Harbor Pilot and not to the company. It added that "Makar Wharf is a
berthing place only for self-propelled vessel [sic]."[24] As Power Barge 104 was not a self-
propelled vessel, it "had no right to lash itself on the Maka[r] Wharf. . . . [and] it assumed
the risk of such ramming because [of] its improper presence[.]"[25] Lastly, Lorenzo
Shipping pointed out that National Power Corporation's action was barred by laches as
four (4) years had lapsed before it filed its Complaint.[26]

The Regional Trial Court issued the Decision[27] dated February 18, 2002 absolving
Lorenzo Shipping of liability. It concluded that National Power Corporation failed to
establish Lorenzo Shipping's negligence. It underscored that while the ramming was
found to have been the result of the engine's stoppage, no malfunctioning was recorded
before and after the incident. The Regional Trial Court further stated that Lorenzo
Shipping was sued in its capacity as the employer of Captain Villarias and that any
liability it incurred would have been only subsidiary. Nevertheless, as Lorenzo Shipping
supposedly exercised due diligence in its selection and supervision of Captain Villarias,
no liability could be attributed to it.[28]

National Power Corporation appealed before the Court of Appeals.

The Court of Appeals rendered the Decision[29] dated September 14, 2007 reversing and
setting aside the February 18, 2002 Decision of the Regional Trial Court and entering
another judgment ordering Lorenzo Shipping to pay National Power Corporation the
amount of P876,286.00 as actual damages and P50,000.00 as attorney's fees and expenses
of litigation.[30]

The Court of Appeals reasoned that while the MV Lorcon Luzon was under compulsory
pilotage, Captain Villarias, the vessel's Master, remained to be its overall commander. It
added that he was remiss in his duties as he did nothing in the crucial moments when
Captain Yape's orders to go astern appeared to not have been heeded. [31] It cited Article
2180 of the Civil Code[32] in that an employer's liability is primary and not subsidiary. It
further noted that Lorenzo Shipping failed to show that it exercised due diligence in the
selection and supervision of Captain Villarias.[33]

Lorenzo Shipping filed a Motion for Reconsideration.

The Court of Appeals then issued the Amended Decision dated February 12, 2008.
[34]
 Noting that the amount of actual damages was not proven by National Power
Corporation, it awarded National Power Corporation the amount of P300,000.00 as
temperate damages in lieu of actual damages. The awards for attorney's fees and litigation
expenses were sustained.

National Power Corporation then filed a Motion for Reconsideration, which the Court of
Appeals denied in its Resolution dated September 17, 2008.[35]

On March 31, 2008, Lorenzo Shipping filed the Petition for Review on
Certiorari[36] docketed as G.R. No. 181683. It reiterated its position that no liability could
be attributed to it as the MV Lorcon Luzon was under compulsory pilotage and that
National Power Corporation assumed risk when it berthed a non-propelled vessel in the
Makar Wharf.[37] It added that even assuming that it was at fault, the award of P3
00,000.00 as temperate damages was still improper. It claimed that, from the text of
Article 2224 of the Civil Code,[38] temperate damages can be awarded only in cases where
pecuniary loss may have been incurred, but whose exact amount, through the nature of
the injury suffered, e.g., injury to commercial credit or business goodwill, cannot be
ascertained. It argued that National Power Corporation was well in a position to adduce
proof of the exact amount of damage it incurred, but failed to do so.[39]

On November 24, 2008, National Power Corporation filed its Comment [40] to Lorenzo
Shipping's Petition. It maintained that it was Lorenzo Shipping that must be held liable
and that it was able to show by "competent testimonial and documentary evidence"[41] that
it must be compensated for actual damages in the amount of P876,826.00. On April 7,
2009, Lorenzo Shipping filed its Reply.[42]

In the meantime, on November 18, 2008, National Power Corporation filed its own
Petition for Review on Certiorari[43] docketed as G.R. No. 184568, arguing how it had
supposedly proven by competent evidence that it was entitled to actual damages in the
amount of F876,826.00. Lorenzo Shipping filed its Comment[44] on February 2, 2009.
National Power Corporation filed its Reply[45] on June 22, 2009.

In the Resolution[46] dated February 9, 2009, this court consolidated the Petitions

docketed as G.R. Nos. 181683 and 184568.

For resolution are the following issues:

First, whether Lorenzo Shipping Corporation is liable for the damage sustained by Power
Barge 104 when the MV Lorcon Luzon rammed into it, considering that at the time of the
ramming, the MV Lorcon Luzon was under mandatory pilotage by Captain Yape; and

Second, assuming that liability is to be attributed to Lorenzo Shipping, what damages, if

any, may be awarded to National Power Corporation.
 I

It is not disputed that the MV Lorcon Luzon, a vessel owned and operated by Lorenzo
Shipping, rammed into Power Barge 104 while attempting to dock at the Makar Wharf.
Likewise, it is not disputed that when it rammed into Power Barge No. 104, the MV
Lorcon Luzon was being piloted by Captain Yape. What is in dispute is whether Captain
Yape's pilotage suffices to absolve Lorenzo Shipping of liability.

A Master's designation as the commander of a vessel is long-settled. This court's citation

in Yu Con v. Ipil[47] of General Review of Legislation and Jurisprudence explains that
"Master" and "Captain" are synonymous terms:
"The name of captain or master is given, according to the kind of vessel, to the person in
charge of it.

"The first denomination is applied to those who govern vessels that navigate the high seas
or ships of large dimensions and importance, although they be engaged in the coastwise
trade.

"Masters are those who command smaller ships engaged exclusively in the coastwise
trade.

"For the purposes of maritime commerce, the words 'captain' and Q 'master' have the
same meaning; both being the chiefs or commanders of ships.[48]
Likewise, in Inter-Orient Maritime Enterprises, Inc. v. National Labor Relations
Commission:[49]
A master or captain, for purposes of maritime commerce, is one who has command of a
vessel. A captain commonly performs three (3) distinct roles: (1) he is a general agent of
the shipowner; (2) he is also commander and technical director of the vessel; and (3) he is
a representative of the country under whose flag he navigates. Of these roles, by far the
most important is the role performed by the captain as commander of the vessel; for such
role (which, to our mind, is analogous to that of "Chief Executive Officer" [CEO] of a
present-day corporate enterprise) has to do with the operation and preservation of the
vessel during its voyage and the protection of the passengers (if any) and crew and cargo.
In his role as general agent of the shipowner, the captain has authority to sign bills of
lading, carry goods aboard and deal with the freight earned, agree upon rates and decide
whether to take cargo. The ship captain, as agent of the shipowner, has legal authority to
enter into contracts with respect to the vessel and the trading of the vessel, subject to
applicable limitations established by statute, contract or instructions and regulations of
the shipowner. To the captain is committed the governance, care and management of the
vessel. Clearly, the captain is vested with both management and fiduciary functions.
[50]
 (Emphasis supplied, citations omitted)
This notwithstanding, there are recognized instances when control of a vessel is yielded
to a pilot. Section 8 of Philippine Ports Authority (PPA) Administrative Order No. 03-85,
otherwise known as the Rules and Regulations Governing Pilotage Services, the Conduct
of Pilots and Pilotage Fees in Philippine Ports,[51] enumerates instances when vessels are
subjected to compulsory pilotage:
Sec. 8. Compulsory Pilotage Service — For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged
in coastwise and foreign trade shall be under compulsory pilotage.

However, in the Ports of Manila and Cebu, and in such other ports as may be allowed by
this Authority, Ship Captains may pilot their vessels engaged in coastwise trade provided
they meet / comply with the following minimum qualifications / requirements:
a) Must be properly licensed as a Harbor Pilot by the Philippine Coast Guard for Manila,
Cebu and other authorized ports;

b) Must have been a Master of an interisland vessel for at least three (3) years prior to his
application with the PPA;

c) Must be certified by a government physician as physically and mentally fit.

Vessels maneuvered by a Special Harbor Pilot shall be exempt from the payment of all
pilotage fees.[52]
The second paragraph of Section 8 identifies an instance when control of a vessel need
not be yielded to a pilot. Section 9 further enumerates exceptions to compulsory pilotage:
Sec. 9. Exemptions - In the following cases, pilotage service is not compulsory:
a) Vessels engaged in coastwise trade undocking at all ports, except at the ports of Manila,
Cebu, Iloilo, Tacloban, Davao, Zamboanga, Pulupandan, Masinloc, and San Fernando,
b) Government vessels,
c) Vessels of foreign governments entitled to courtesy,
d) Vessels that are authorized by BOT to engage in daily ferry service plying between two
places within a port or between two ports,
e) Phil. Flag vessels engaged in coastwise trade that depart from an anchorage,
f) Vessels calling at private ports whose owners have formally waived the requirements of
compulsory pilotage.[53]
Section 32(f) of PPA Administrative Order No. 03-85 specifies the foremost
responsibility of a Harbor Pilot, that is, the direction of the vessel being piloted. In
addition, Section 32 (f) spells out the duration within which the Harbor Pilot is to fulfill
this responsibility. It likewise provides that the Master's failure to carry out the Harbor
Pilot's orders is a ground for absolving the Harbor Pilot of liability:
Sec. 32. Duties and Responsibilities of the Pilots or Pilots' Association. — The duties and
responsibilities of the Harbor Pilot shall be as follows:

....
 
f) A pilot shall be held responsible for the direction of a vessel from the time he assumes his
work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that
 his responsibility shall cease at the moment the Master neglects or refuses to carry out his
order.[54]
Consistent with the yielding of control to a pilot, Section 11 of PPA Administrative Order
No. 03-85 makes the Harbor Pilot liable for damage caused by his or her negligence or
fault. The same provision, however, emphasizes that "overall command" of the vessel
remains in the Master of the vessel:
Sec. 11. Control of Vessels and Liability for Damage. — On compulsory pilotage
grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the
damage caused to a vessel or to life and property at ports due to his negligence or fault.
He can be absolved from liability if the accident is caused by force majeure or natural
calamities provided he has exercised prudence and extra diligence to prevent or minimize
the damage.

The Master shall retain overall command of the vessel even on pilotage grounds whereby
he can countermand or overrule the order or command of the Harbor Pilot on board. In
such event, any damage caused to a vessel or to life and property at ports by reason of the
fault or negligence of the Master shall be the responsibility and liability of the registered
owner of the vessel concerned without prejudice to recourse against said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and circumstances
of each particular case.[55]
Accordingly, it is settled that Harbor Pilots are liable only to the extent that they can
perform their function through the officers and crew of the piloted vessel.[56] Where there
is failure by the officers and crew to adhere to their orders, Harbor Pilots cannot be held
liable.[57] In Far Eastern Shipping Co. V. Court of Appeals,[58] this court explained the
intertwined responsibilities of pilots and masters:
[W]here a compulsory pilot is in charge of a ship, the master being required to permit
him to navigate it, if the master observes that the pilot is incompetent or physically
incapable, then it is the duty of the master to refuse to permit the pilot to act. But if no
such reasons are present, then the master is justified in relying upon the pilot, but not
blindly. Under the circumstances of this case, if a situation arose where the master,
exercising that reasonable vigilance which the master of a ship should exercise, observed,
or should have observed, that the pilot was so navigating the vessel that she was going, or
was likely to go, into danger, and there was in the exercise of reasonable care and
vigilance an opportunity for the master to intervene so as to save the ship from danger,
the master should have acted accordingly. The master of a vessel must exercise a degree
of vigilance commensurate with the circumstances.[59] (Citations omitted)
Thus, contrary to Lorenzo Shipping's assertion, the MV Lorcon Luzon's having been
piloted by Captain Yape at the time of the ramming does not automatically absolve
Lorenzo Shipping of liability. Clearing it of liability requires a demonstration of how the
Master, Captain Villarias, conducted himself in those moments when it became apparent
that the MV Lorcon Luzon's engine had stopped and Captain Yape's orders to go "slow
astern" and "full astern" were not being heeded.

II

As noted by the Court of Appeals, Captain Villarias was remiss in his duties. In his
testimony before the Board of Marine Inquiry, Captain Villarias admitted that about six
(6) minutes had passed before he even realized that there was an engine failure, let alone
acted on this fact:
Significantly, Captain Mariano Villarias before the Board of Marine Inquiry testified as
follows:

"Atty. Now, during the time of that accident, Mr. Witness, how did you know that the cause
Tapel: of the ramming on Power Barge No. 104 was due to engine failure?
Capt There was no response upon the order or the harbor pilot from slow to full eastern [sic]
Villarias: engine.
Atty. Do you want to tell this Honorable Board that before the ramming incident there was
Tepal: an order from the harbor pilot for slow eastern [sic] engine and there was no response?
Capt Yes, there was an order.
Villarias:
Atty. Where were you at that time, Mr. Witness?
Tepal:
Capt. I am always [at] the side of the harbor pilot.
Villarias:
Atty. Have you heard the harbor pilot issuing the orders?
Tepal:
Capt. Yes, because I have to repeat his order.
Villarias:
Atty. Now, when there was no response[,] who is supposed to respond to the order of the
Tepel harbor pilot?
(sic):
Capt. It was the engine department.
Vilalrias:
Atty Who in the engine department is supposed to respond to the order of the harbor pilot?
Tapel
(sic):
Capt. The second engineer and the chief engineer. The engineer on duty.
Villarias:
Atty. And because there was no response from the engine department[,] you concluded that
Tepal: there was an engine failure which caused the ramming of Napocor Power Barge?
Capt. Almost six (6) minutes there is no response before I know that there was an engine
Villarias: failure."[60]
In the Reply it filed in G.R. No. 181683, Lorenzo Shipping attempts to douse the
significance of Captain Villarias' inaction for six (6) minutes as follows:
The Court of Appeals held that Capt. Villarias was remiss in his duties because he just
stood besides [sic] the harbour pilot waiting for a response from the engine department.
He could have called the attention of Capt. Yape on his miscalculations in the docking
maneuvers of the vessel.

But the Court of Appeals assumed that the unfolding circumstances on the water that
approached the wharf were in slow motion and permitted the vessel's captain to have time
to examine the situation and deliberate on it, make a judgment that the pilot had given a
wrong command, wrest from him control of the vessel, and enable the crew down in its
belly, at the time tuned to the voice of the pilot, to realize that the latter's authority had
been superseded and that the command had reverted to the captain. As it were, no
evidence was presented to show that the captain and the crew had all the time they
needed to arrest the momentum of the vessel to which the pilot had directed it. [61]
We disagree.

In the first place, six (6) minutes cannot be characterized as so quick and fleeting that it
deprived Captain Villarias and his crew of "the time they needed to arrest the momentum
of the vessel."[62] By way of reference, an entire song of average length (or longer) could
have played in Captain Villarias' head within those six (6) minutes. The vessel had been
performing the tedious task of berthing and had been moving so fast that it was about to
collide with the docks in the wharf. Given these circumstances, it was only reasonable for
Captain Villarias, precisely because he was the vessel's Master, to remain vigilant, to
support and supplement Captain Yape's orders, and to take evasive and counter measures
should Captain Yape's attempts to safely berth prove to be ineffectual. The Court of
Appeals' observation is well-taken: "Even just a minute without any response from the
concerned department could have alarmed him."[63]

Lorenzo Shipping counters the observations of the Court of Appeals by attempting to

paint a picture of absurdity. It describes the confluence of events as needing to have been
in "slow motion" if the crew were to timely and properly react. It conjures images of
Captain Villarias "wrest[ing] from [Captain Yape] control of the vessel"[64] and the crew
thrown into a confused frenzy as they had to listen to Captain Villarias' voice.

This manner of arguing fails to impress. To reiterate, six (6) minutes were more than
enough time for Captain Villarias to have done something to remedy the situation. It is
not for us to hypothesize on whether the measures he took would have been effectual. It
remains that for six minutes, he did nothing. As Master of the MV Lorcon Luzon, he
should have been on his toes, keen and ready to make decisions in a split second,
especially in an evidently precarious situation. His failure to timely act is too glaring to
ignore.

Moreover, both Captain Villarias and Captain Yape must be presumed to have been
disciplined officers who knew fully well how to conduct themselves in such a situation.
There is no basis for contemplating a scenario where the Pilot and the Master are battling
for control of the MV Lorcon Luzon.

So, too, the crew must be presumed to have been trained to follow the Master's
commands. It is ridiculous to think that merely hearing Captain Villarias' voice in lieu of
Captain Yape's would throw the crew into paralyzed confusion. Besides, from Captain
Villarias' quoted testimony, the crew was already listening to both his and Captain Yape's
voices. He admitted that he repeated Captain Yape's orders. The crew was, thus, properly
disposed to heed instructions coming from him. If at all, his failure to timely act despite
the crew's presumptive readiness to heed his command only highlights his negligence.

III

Equally futile is Lorenzo Shipping's claim that National Power Corporation must bear its
own losses as it assumed the risk of injury when it moored a non-propelled or stationary
barge in the Makar Wharf.

It is pointless to even consider this. Apart from Lorenzo Shipping's own self-serving
assertions, there is no basis for holding that Power Barge 104's presence in the Makar
Wharf was improper and tantamount to an assumption of risk. Lorenzo Shipping could
have very easily adduced proof attesting to Makar Wharf's supposedly being exclusive to
self-propelled vessels. It did not. Nowhere in any of its submissions to this court did
Lorenzo Shipping annex a copy of the appropriate regulation, if any, that restricts the use
of Makar Wharf to self-propelled vessels or absolutely prohibits National Power
Corporation from using it as a berthing place for a power barge.

If at all, the MV Lorcon Luzon's ramming of a stationary object is even more damaging
to Lorenzo Shipping's cause. As explained in Far Eastern Shipping:[65]
We start our discussion of the successive issues bearing in mind the evidentiary rule in
American jurisprudence that there is a presumption of fault against a moving vessel that
strikes a stationary object such as a dock or navigational aid. In admiralty, this
presumption does more than merely require the ship to go forward and produce some
evidence on the presumptive matter. The moving vessel must show that it was without
fault or that the collision was occasioned by the fault of the stationary object or was the
result of inevitable accident. It has been held that such vessel must exhaust every
reasonable possibility which the circumstances admit and show that in each, they did all
that reasonable care required. In the absence of sufficient proof in rebuttal, the
presumption of fault attaches to a moving vessel which collides with a fixed object and
makes a prima facie case of fault against the vessel. Logic and experience support this
presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply
do not occur in the ordinary course of things unless the vessel has been mismanaged in
some way. It is not sufficient for the respondent to produce witnesses who testify that as
soon as the danger became apparent everything possible was done to avoid an accident.
The question remains, How then did the collision occur? The answer must be either that,
in spite of the testimony of the witnesses, what was done was too little or too late or, if
not, then the vessel was at fault for being in a position in which an unavoidable collision
would occur.[66] (Emphasis supplied, citations omitted)
IV

We sustain the Court of Appeals' award to National Power Corporation of P300,000.00 as

temperate damages.

Article 2199 of the Civil Code spells out the basic requirement that compensation by way
of actual damages is awarded only to the extent that pecuniary loss is proven:
Article 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
The standard for proving pecuniary loss was explained in PNOC Shipping and Transport
Corp. v. Court of Appeals,[67] as follows:
A party is entitled to adequate compensation only for such pecuniary loss actually
suffered and duly proved. Indeed, basic is the rule that to recover actual damages, the
amount of loss must not only be capable of proof but must actually be proven with a
reasonable degree of certainty, premised upon competent proof or best evidence
obtainable of the actual amount thereof. The claimant is duty-bound to point out specific
facts that afford a basis for measuring whatever compensatory damages are borne. A
court cannot merely rely on speculations, conjectures, or guesswork as to the fact and
amount of damages as well as hearsay or uncorroborated testimony whose truth is
suspect.[68] (Citations omitted)
National Power Corporation bewails the Court of Appeals' observation that the basis of
its claims was "not properly receipted."[69] It counters that it was able to show by
"competent testimonial and documentary evidence"[70] that it must be compensated for
actual damages in the amount of P876,826.00. It recalls these pieces of evidence:

a. Testimony of Mr. Nelson Homena, manager of Power Barge 104 [who]

testified on the damages [sic] sustained by said barge as a result of the
ramming incident caused by the negligence of M/V Lorcon Luzon.

b. The "Total Incidental Cost for Drydock and Repair" prepared by the
Philippine Shipyard and Engineering Corporation ("PHILSECO") dated 14
October 1993 was presented which clearly enumerated and itemized the
actual damages [sic] sustained by Power Barge 104 and repaired by
PHILSECO.

c. NPC Disbursement Voucher No. 093-121304 in the amount of

P6,775,839.02 covering a period up to 14 January 1994 as proof of payment
 made by [National Power Corporation] to PHILSECO for drydocking
repairs of Power Barge 104.[71]

However, Lorenzo Shipping pointed out fatal flaws in these pieces of evidence. These
flaws led the Court of Appeals to reconsider its earlier award of actual damages to
National Power Corporation.

Regarding the "Total Incidental Cost for Drydock and Repair," which was National
Power Corporation's Exhibit "F" before the Regional Trial Court, Lorenzo Shipping
underscored that when the Regional Trial Court ruled on National Power Corporation's
Formal Offer of Evidence, it denied the admission of Exhibit "F" for not having been
identified nor authenticated. It emphasized that no witness came forward to attest to its
authenticity and due execution, let alone allowed himself or herself to be cross-examined
on these points.[72]

Regarding Nelson Homena's testimony, Lorenzo Shipping emphasized that all he

indicated was how he and a certain Mr. Neri estimated the cost of damage to be at about
P1,000,000.00.[73]

Regarding Disbursement Voucher No. 093-121304, Lorenzo Shipping pointed out that
while this attests to expenses paid to PHILSECO, it was silent on the exact cost paid for
the repair of Power Barge 104.[74]

Nowhere in any of its submissions to this court—whether in its Comment in G.R.

No. 181683 or in its Petition and/or Reply in G.R. No. 184568—did National Power
Corporation rebut the flaws noted by Lorenzo Shipping. Instead, it merely insisted on
how actual damages are awarded on the basis of the "best obtainable evidence," [75] and
how it has supposedly presented "competent testimonial and documentary evidence" [76] to
prove its claims.

National Power Corporation's posturing fails to impress.

It is basic that any material presented as evidence will not be considered unless duly
admitted by the court before which it is presented. Just as basic is that a private document
offered as authentic evidence shall not be admitted unless its due execution and
authenticity are established in the manner specified by Rule 132, Section 30 of the
Revised Rules on Evidence:
Section 20. Proof of private document. - Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be proved
either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.
A bill of expenses, such as National Power Corporation's Exhibit "F", is considered a
private document as it does not fall under what the Revised Rules on Evidence defines to
be public documents.[77] Accordingly, for it to have been admitted by the Regional Trial
Court as authentic, Rule 132, Section 30 of the Revised Rules on Evidence must have
been complied with. National Power Corporation failed in this respect. Thus, in the words
of the Regional Trial Court, it:
3. Denies the admission of Exhibit "F" and its submarkings for not having been properly
identified.[78]
It is of no consequence that the substance or contents of Exhibit "F" are such that they
specify an amount. It is of no consequence that it is purportedly of such evidentiary
weight that it could definitely establish National Power Corporation's claims.

Admissibility of evidence and weight accorded to evidence are two distinct affairs. Rule
128, Section 3 of the Revised Rules on Evidence governs admissibility and provides that
"[e]vidence is admissible when it is relevant to the issue and is not excluded by the law of
these rules." When evidence has "such a relation to the fact in issue as to induce belief in
its existence or non-existence,"[79] it is said to be relevant. When evidence is not excluded
by law or by the Rules, it is said to be competent.

The weight accorded to evidence is properly considered only after evidence has been
admitted. To this end, courts evaluate evidence in accordance with the rules stipulated by
Rule 133 of the Revised Rules on Evidence,[80] consistent with basic precepts of
rationality and guided by judicially established standards. It is improper to even speak of
evidentiary weight when the piece of evidence in question has not even been admitted.

Exhibit "F" was ruled to have been inadmissible for failing to comply with Rule 132,
Section 20 thus, it failed the standard of competency. Consistent with this, reliance on
National Power Corporation's Exhibit "F" and its contents, so as to establish the extent of
National Power Corporation's pecuniary loss, is misplaced. Not having been admitted,
Exhibit "F" does not form part of the body of evidence worthy of judicial consideration.

As National Power Corporation cannot rely on the "Total Incidental Cost for Drydock
and Repair," it is left to rely on the testimony of Nelson Hpmena and on NPC
Disbursement Voucher No. 093-121304.

However, as pointed out by Lorenzo Shipping, these pieces of evidence fall short of the
standard required for proving pecuniary loss, which shall be the basis for awarding actual
damages. As regards Nelson Homena's testimony, all he did was give an estimate of
P1,000,000.00. Certainly, a mere estimate does not suffice as proof of actual pecuniary
loss. As regards NPC Disbursement Voucher No. 093-121304, all it attests to is a release
of funds in favor of PHILSECO in the total amount of P6,775,839.02, covering no
specific transaction but a period extending from January 14, 1994.

Clearly, National Power Corporation failed to establish the precise amount of pecuniary
loss it suffered. Nevertheless, it remains that Power Barge 104 sustained damage—which
may be reckoned financially—as a result of the MV Lorcon Luzon's ramming into it.
National Power Corporation suffered pecuniary loss, albeit its precise extent or amount
had not been established. Accordingly, we sustain the Court of Appeals' conclusion that
National Power Corporation is entitled to temperate damages.

Articles 2224 and 2225 of the Civil Code govern temperate damages:
Article 2224. Temperate or moderate damages, which are more than nominal but less
than compensatory damages, may be recovered when the court finds that some pecuniary
loss has been suffered but its amount can not, from the nature of the case, be provided
with certainty.

Article 2225. Temperate damages must be reasonable under the circumstances.

Banking on Article 2224's text, which references "the nature of the case," Lorenzo
Shipping asserts that temperate damages can be awarded only in cases where pecuniary
loss may have been incurred, but whose exact amount, through the nature of the injury
suffered, e.g., injury to commercial credit or business goodwill, cannot be ascertained. It
argues that because the circumstances of this case are such that National Power
Corporation could have pleaded and proved a specific—i.e., ascertained—amount of
pecuniary loss but failed to do so, temperate damages should not be awarded.

Lorenzo Shipping is proposing an erroneous, narrow, and unduly restrictive construction

of Article 2224.

This case is not the first instance that this court was confronted with the ostensibly
limiting language of Article 2224. In Republic of the Philippines v. Tuvera,[81] this court
already debunked the notion that temperate damages are appropriate only in those cases
in which pecuniary loss cannot, "by its nature," be ascertained:
Temperate or moderate damages avail when "the court finds that some pecuniary loss has
been suffered but its amount can not from the nature of the case, be proved with
certainty." The textual language might betray an intent that temperate damages do not
avail when the case, by its nature, is susceptible to proof of pecuniary loss; and certainly
the Republic could have proved pecuniary loss herein. Still, jurisprudence applying
Article 2224 is clear that temperate damages may be awarded even in instances where
pecuniary loss could theoretically have been proved with certainty.

In a host of criminal cases, the Court has awarded temperate damages to the heirs of the
victim in cases where the amount of actual damages was not proven due to the
inadequacy of the evidence presented by the prosecution. These cases include People v.
Oliano, People v. Suplito, People v. De la Tongga, People v. Briones, and People v.
Plazo. In Viron Transportation Co., Inc. v. Delos Santos, a civil action for damages
involving a vehicular collision, temperate damages were awarded for the resulting
damage sustained by a cargo truck, after the plaintiff had failed to submit competent
proof of actual damages.[82] (Citations omitted)
In resolving this case, we have had to sift through the parties' competing claims as to who
exactly is liable and to what extent. Reduced to its fundamentals, however, this case
remains to be about damage sustained by property owned by National Power Corporation
when the MV Lorcon Luzon rammed into it. This damage is susceptible to financial
reckoning. Unfortunately for National Power Corporation, it failed to establish the
precise amount of its pecuniary loss. This vice of precision notwithstanding, it would be
improper to completely turn a blind eye to the loss suffered by National Power
Corporation and to deny it, as Lorenzo Shipping suggests, of any form of recompense.
Under these circumstances, we sustain the Court of Appeals' award of temperate
damages.

WHEREFORE, the consolidated Petitions are DENIED. The Amended Decision dated

February 12, 2008 and Resolution dated September 17, 2008 of the Court of Appeals in
CA-G.R. CV No. 76295 are AFFIRMED.

All monetary awards for damages shall earn interest at the legal rate of 6% per annum
from the date of the finality of this judgment until fully paid.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 190846, February 03, 2016 ]
TOMAS P. TAN, JR., PETITIONER, VS. JOSE G. HOSANA, RESPONDENT.

DECISION

BRION, J.:

Before us is a petition for review on certiorari[1] challenging the August 28, 2009

decision[2] and November 17, 2009 resolution[3] of the Court of Appeals (CA) in CA-G.R.
CV No. 88645.
 The Facts

The respondent Jose G. Hosana (Jose) married Milagros C. Hosana (Milagros) on January
14, 1979.[4] During their marriage, Jose and Milagros bought a house and lot located at
Tinago, Naga City, which lot was covered by Transfer Certificate of Title (TCT) No. 21229.
[5]

On January 13, 1998, Milagros sold to the petitioner Tomas P. Tan, Jr. (Tomas) the
subject property, as evidenced by a deed of sale executed by Milagros herself and as
attorney-in-fact of Jose, by virtue of a Special Power of Attorney (SPA) executed by Jose
in her favor.[6] The Deed of Sale stated that the purchase price for the lot was
P200,000.00.[7] After the sale, TCT No. 21229 was cancelled and TCT No. 32568 was
issued in the name of Tomas.[8]

On October 19, 2001, Jose filed a Complaint for Annulment of Sale/Cancellation of

Title/Reconveyance and Damages against Milagros, Tomas, and the Register of Deeds of
Naga City.[9] The complaint was filed before the Regional Trial Court (RTC), Branch 62,
Naga City. In the complaint, Jose averred that while he was working in Japan, Milagros,
without his consent and knowledge, conspired with Tomas to execute the SPA by
forging Jose's signature making it appear that Jose had authorized Milagros to sell the
subject property to Tomas.[10]

In his Answer, Tomas maintained that he was a buyer in good faith and for value.
[11]
 Before he paid the full consideration of the sale, Tomas claimed he sought advice
from his lawyer-friend who told him that the title of the subject lot was authentic and in
order.[12] Furthermore, he alleged that the SPA authorizing Milagros to sell the property
was annotated at the back of the title.[13]

Tomas filed a cross-claim against Milagros and claimed compensatory and moral
damages, attorney's fees, and expenses, for litigation, in the event that judgment be
rendered in favor of Jose.[14]

The RTC declared Milagros in default for her failure to file her answer to Jose's
complaint and Tomas cross-claim.[15] On the other hand, it dismissed Tomas' complaint
against the Register of Deeds since it was only a nominal party. [16]

After the pre-trial conference, trial on the merits ensued. [17]

Jose presented his brother, Bonifacio Hosana (Bonifacio), as sole witness. Bonifacio
testified that he learned of the sale of the subject property from Milagros' son. [18] When
Bonifacio confronted Milagros that Jose would get angry because of the sale, Milagros
retorted that she sold the property because she needed the money. Bonifacio
immediately informed Jose, who was then in Japan, of the sale. [19]

Jose was furious when he learned of the sale and went back to the Philippines. Jose and
Bonifacio verified with the Register of Deeds and discovered that the title covering the
disputed property had been transferred to Tomas.[20]

Bonifacio further testified that Jose's signature in the SPA was forged. [21] Bonifacio
presented documents containing the signature of Jose for comparison: Philippine
passport, complaint-affidavit, duplicate original of SPA dated 16 February 2002, notice
of lis pendens, community tax certificate, voter's affidavit, specimen signatures, and a
handwritten letter.[22]

On the other hand, Tomas submitted his own account of events as corroborated by
Rosana Robles (Rosana), his goddaughter. Sometime in December 1997, Tomas directed
Rosana to go to the house of Milagros to confirm if Jose knew about the sale
transaction. Through a phone call by Milagros to Jose, Rosana was able to talk to Jose
who confirmed that he was aware of the sale and had given his wife authority to
proceed with the sale. Rosana informed Tomas of Jose's confirmation. [23]

With the assurance that all the documents were in order, Tomas made a partial
payment of P350,000.00 and another P350,000.00 upon the execution of the Deed of
Absolute Sale (Deed of Sale). Tomas noticed that the consideration written by Milagros
on the Deed of Sale was only P200,000.00; he inquired why the written consideration
was lower than the actual consideration paid. Milagros explained that it was done to
save on taxes. Tomas also learned from Milagros that she needed money badly and had
to sell the house because Jose had stopped sending her money. [24]

The RTC Ruling

In its decision dated December 27, 2006,[25] the RTC decided in favor of Jose and nullified
the sale of the subject property to Tomas. The RTC held that the SPA dated June 10,
1996, wherein Jose supposedly appointed Milagros as his attorney-in-fact, was actually
null and void.
Tomas and Milagros were ordered to jointly and severally indemnify Jose the amount of
P20,000.00 as temperate damages.[26]

The CA Ruling

Tomas appealed the RTC's ruling to the CA.

In a decision dated August 28, 2009,[27] the CA affirmed the RTC ruling that the deed of
sale and the SPA were void. However, the CA modified the judgment of the RTC: first, by
deleting the award of temperate damages; and second, by directing Jose and Milagros
to reimburse Tomas the purchase price of P200,000.00, with interest, under the
principle of unjust enrichment. Despite Tomas' allegation that he paid P700,000.00 for
the subject lot, the CA found that there was no convincing evidence that established this
claim.[28]

Tomas filed a motion for the reconsideration of the CA decision on the ground that the
amount of P200,000.00 as reimbursement for the purchase price of the house and lot
was insufficient and not supported by the evidence formally offered before and
admitted by the RTC. Tomas contended that the actual amount he paid as consideration
for the sale was P700,000.00, as supported by his testimony before the RTC. [29]

The C A denied the motion for reconsideration for lack of merit" in a resolution dated
November 17, 2009.[30]

The Petition

Tomas filed the present petition for review on certiorari to challenge the CA ruling which
ordered the reimbursement of P200,000.00 only, instead of the actual purchase price he
paid in the amount of P700,000.00.[31]

Tomas argues that, first, all matters contained in the deed of sale, including the
consideration stated, cannot be used as evidence since it was declared null and
void; second, the deed of sale was not specifically offered to prove the actual
consideration of the sale;[32] third, his testimony establishing the actual purchase price of
P700,000.00 paid was uncontroverted;[33] and, fourth, Jose must return the full amount
actually paid under the principle of solutio indebiti.[34]
Jose, on the other hand, argues that first, Jose is estopped from questioning the
purchase price indicated in the deed of dale for failing to immediately raise this
question; and second, the terms of an agreement reduced into writing are deemed to
include all the terms agreed upon and no other evidence can be admitted other than
the terms of the agreement itself.[35]

The Issues

The core issues are (1) whether the deed of sale can be used as the basis for the amount
of consideration paid; and (2) whether the testimony of Tomas is sufficient to establish
the actual purchase price of the sale.

OUR RULING

We affirm the CA ruling and deny the petition.

Whether Tomas paid the purchase price of P700,000.00 is a question of fact not proper
in a petition for review on certiorari. Appreciation of evidence and inquiry on the
correctness of the appellate court's factual findings are not the functions of this Court,
as we are not a trier of facts.[36]

This Court does not address questions of fact which require us to rule on "the truth or
falsehood of alleged facts,"[37] except in the following cases:
(1) when the findings are grounded entirely on speculations, surmises, or
conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible;
(3) when there is a grave abuse of discretion; (4) when the judgment is based on
misappreciation of facts; (5) when the findings of fact are conflicting; (6) when in making
its findings, the same are contrary to the admissions of both appellant and appellee; (7)
when the findings are contrary to those of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondent; and (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record. [38]
The present case does not fall under any of these exceptions.

Whether Tomas sufficiently proved that he paid P700,000.00 for the subject property is
a factual question that the CA had already resolved in the negative. [39] The CA found
Tomas' claim of paying P700,000.00 for the subject property to be unsubstantiated as
he failed to tender any convincing evidence to establish his claim.

We uphold the CA's finding.

In civil cases, the basic rule is that the party making allegations has the burden of
proving them by a preponderance of evidence.[40] Moreover, the parties must rely on
the strength of their own evidence, not upon the weakness of the defense offered by
their opponent.[41]

Preponderance of evidence is the weight, credit, and value of the aggregate evidence

on either side and is usually considered to be synonymous with the term "greater
weight of the evidence" or "greater weight of the credible evidence." [42] Preponderance
of evidence is a phrase that, in the last analysis, means probability of the truth. It is
evidence that is more convincing to the court as it is worthier of belief than that which is
offered in opposition thereto.[43]

We agree with the CA that Tomas' bare allegation that he paid Milagros the sum of
P700,000.00 cannot be considered as proof of payment, without any other convincing
evidence to establish this claim. Tomas' bare allegation, while uncontroverted, does not
automatically entitle it to be given weight and credence.

It is settled in jurisprudence that one who pleads payment has the burden of proving it;
[44]
 the burden rests on the defendant to prove payment, rather than on the plaintiff to
prove non-payment.[45] A mere allegation is not evidence,[46] and the person who alleges
has the burden of proving his or her allegation with the requisite quantum of evidence,
which in civil cases is preponderance of evidence.

The force and effect of a void contract is distinguished from its admissibility as
evidence.

The next question to be resolved is whether the CA correctly ordered the

reimbursement of P200,000.00, which is the consideration stated in the Deed of Sale,
based on the principle of unjust enrichment.

The petitioner argues that the CA erred in relying on the consideration stated in the
deed of sale as basis for the reimbursable amount because a null and void document
cannot be used as evidence.
We find no merit in the petitioner's argument.

A void or inexistent contract has no force and effect from the very beginning. [47] This rule
applies to contracts that are declared void by positive provision of law, as in the case of
a sale of conjugal property without the other spouse's written consent. [48] A void
contract is equivalent to nothing and is absolutely wanting in civil effects. [49] It cannot be
validated either by ratification or prescription.[50] When, however, any of the terms of a
void contract have been performed, an action to declare its inexistence is necessary to
allow restitution of what has been given under it.[51]

It is basic that if a void contract has already "been performed, the restoration of what
has been given is in order."[52] This principle springs from Article 22 of the New Civil Code
which states that "every person who through an act of performance by another, or any
other means, acquires or comes into possession of something at the expense of the
latter without just or legal ground, shall return the same." Hence, the restitution of what
each party has given is a consequence of a void and inexistent contract.

While the terms and provisions of a void contract cannot be enforced since it is deemed
inexistent, it does not preclude the admissibility of the contract as evidence to prove
matters that occurred in the course of executing the contract, i.e., what each party has
given in the execution of the contract.

Evidence is the means of ascertaining in a judicial proceeding the truth respecting a

matter of fact, sanctioned by the Rules of Court.[53] The purpose of introducing
documentary evidence is to ascertain the truthfulness of a matter at issue, which can be
the entire content or a specific provision/term in the document.

The deed of sale as documentary evidence may be used as a means to ascertain the
truthfulness of the consideration stated and its actual payment. The purpose of
introducing the deed of sale as evidence is not to enforce the terms written in the
contract, which is an obligatory force and effect of a valid contract. The deed of sale,
rather, is used as a means to determine matters that occurred in the execution of such
contract, i.e., the determination of what each party has given under the void contract to
allow restitution and prevent unjust enrichment.

Evidence is admissible when it is relevant to the issue and is not excluded by the law of
these rules.[54] There is no provision in the Rules of Evidence which excludes the
admissibility of a void document. The Rules only require that the evidence is relevant
and not excluded by the Rules for its admissibility. [55]

Hence, a void document is admissible as evidence because the purpose of introducing it

as evidence is to ascertain the truth respecting a matter of fact, not to enforce the terms
of the document itself.

It is also settled in jurisprudence that with respect to evidence which appears to be

of doubtful relevancy, incompetency, or admissibility, the safer policy is to be liberal and
not reject them on doubtful or technical grounds, but admit them unless plainly
irrelevant, immaterial, or incompetent; for the reason that their rejection places them
beyond the consideration of the court, if they are thereafter found relevant or
competent. On the other hand, their admission, if they turn out later to be irrelevant or
incompetent, can easily be remedied by completely discarding them or ignoring them. [56]

In the present case, the deed of sale was declared null and void by positive provision of
the law prohibiting the sale of conjugal property without the spouse's consent. It does
not, however, preclude the possibility that Tomas paid the consideration stated therein.
The admission of the deed of sale as evidence is consistent with the liberal policy of the
court to admit the evidence: which appears to be relevant in resolving an issue before
the courts.

An offer to prove the regular execution of the deed of sale is basis for the court to
determine the presence of the essential elements of the sale, including the
consideration paid.

Tomas argues that the Deed of Sale was not specifically offered to prove the actual
consideration of the sale and, hence, cannot be considered by the court. Tomas is
incorrect.

The deed of sale in the present case was formally offered by both parties as evidence.
[57]
 Tomas, in fact, formally offered it for the purpose of proving its execution and the
regularity of the sale.[58]

The offer of the deed of sale to prove its regularity necessarily allowed the lower courts
to consider the terms written therein to determine whether all the essential
elements[59] for a valid contract of sale are present, including the consideration of the
sale. The fact that the sale was declared null and void does not prevent the court from
relying on consideration stated in the deed of sale to determine the actual amount paid
by the petitioner for the purpose of preventing unjust enrichment.

Hence, the specific offer of the Deed of Sale to prove the actual consideration of the sale
is not necessary since it is necessarily included in determining the regular execution of
the sale.

The consideration stated in the notarized Deed of Sale is prima facie  evidence of the
amount paid by the petitioner.

The notarized deed of sale is a public document and is prima facie evidence of the truth
of the facts stated therein.[60]

Prima facie evidence is defined as evidence good and sufficient on its face. Such
evidence as, in the judgment of the law, is sufficient to establish a given fact, or the
group or chain of facts constituting the party's claim or defense and which if not
rebutted or contradicted, will remain sufficient.[61]

In the present case, the consideration stated in the deed of sale constitutes prima
facie evidence of the amount paid by Tomas for the transfer of the property to his
name. Tomas failed to adduce satisfactory evidence to rebut or contradict the
consideration stated as the actual consideration and amount paid to Milagros and Jose.

The deed of sale was declared null and void by a positive provision of law requiring the
consent of both spouses for the sale of conjugal property. There is, however, no
question on the presence of the consideration of the sale, except with respect to the
actual amount paid. While the deed of sale has no force and effect as a contract, it
remains prima facie evidence of the actual consideration paid.

As earlier discussed, Tomas failed to substantiate his claim that he paid to Milagros the
amount of P700,000.00, instead of the amount of P200,000.00 stated in the deed of
sale. No documentary or testimonial evidence to prove payment of the higher amount
was presented, apart from Tomas' sole testimony. Tomas' sole testimony of payment is
self-serving and insufficient to unequivocally prove that Milagros received P700,000.00
for the subject property.
Hence, the consideration stated in the deed of sale remains sufficient evidence of the
actual amount the petitioner paid and the same amount which should be returned
under the principle of unjust enrichment.

Unjust enrichment exists "when a person unjustly retains a benefit at the loss of
another, or when a person retains money or property of another against the
fundamental principles of justice, equity, and good conscience." [62] The prevention of
unjust enrichment is a recognized public policy of the State and is based on Article 22 of
the Civil Code.[63]

The principle of unjust enrichment requires Jose to return what he or Milagros received
under the void contract which presumably benefitted their conjugal partnership.

Accordingly, the CA correctly ordered Jose to return the amount of P200,000.00 since
this the consideration stated in the Deed of Sale and given credence by the lower court.
Indeed, even Jose expressly stated in his comment that Tomas is entitled to recover the
money paid by him in the amount of P200,000.00 as appearing in the contract.

WHEREFORE, we hereby DENY the petition for review on certiorari. The decision dated

August 28, 2009 and the resolution dated November 17, 2009, of the Court of Appeals
in CA-G.R. CV No. 88645 is AFFIRMED. Costs against the petitioner.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 223526, December 06, 2017 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. ARIEL
CALVELO Y CONSADA, ACCUSED-APPELLANT.

DECISION

MARTIRES, J.:
 This resolves the appeal of Ariel Calvelo y Consada (Ariel) from the 9 March 2015
Decision[1] of the Court of Appeals (CA), First Division, in CA-G.R. CR-HC No. 06190 which
affirmed the 26 April 2013 judgment[2] of the Regional Trial Court (RTC), Branch 28,
Santa Cruz, Laguna, in Criminal Case No. SC-11953 finding him guilty beyond reasonable
doubt of Violation of Section (Sec.) 5, Article (Art.) II, of Republic Act (R.A.) No. 9165.[3]

THE FACTS

Ariel was charged before the RTC of Santa Cruz, Laguna, with violation of Sec. 5, Art. II
of R.A. No. 9165 committed as follows:

That on November 26, 2005 at about 11:00 o'clock in the evening at Traveller's Inn,
Barangay Pagsawitan, Municipality of Santa Cruz, Province of Laguna and within the
jurisdiction of this Honorable Court, the above-named accused, not being authorized
and/or permitted by law, did then and there wilfully, unlawfully, and feloniously sell and
deliver to a poseur buyer three (3) heat sealed transparent plastic sachets containing a
total weight of 14.07 grams of METHAMPHETAMINE HYDROCHLORIDE (shabu), a
dangerous drug, in consideration of two (2) Five Hundred Peso bills marked money with
Serial Numbers SU132935 and FK512868, in violation of the aforementioned law.

CONTRARY TO LAW.[4]

When arraigned, Ariel pleaded not guilty to the charge against him, thus, trial on the
merits ensued.

The Version of the Prosecution

To prove its case, the prosecution presented Police Officer 2 (PO2) Marites T. Villanueva
(Villanueva) and SPO2 Gerry Abalos (Abalos). The testimony of the forensic chemist,
Police Senior Inspector Donna Villa P. Huelgas (Huelgas), was dispensed with upon the
defense's admission that the prosecution's purpose in presenting her was to identify
Chemistry Report No. D-1246-05 (report) and the shabu subject of her report.[5]

On 25 November 2005, at about 9:00 a.m., a confidential informant (informant) came to

the Philippine Drug Enforcement Agency (PDEA) at Camp Vicente Lim, Canlubang,
Laguna, to inform them that he was able to make a drug deal for fifteen (15) grams of
shabu worth P60,000.00 with a certain Ariel and Diosa.[6] Regional Director Abe Lemos
(Lemos) referred the matter to team leader Police Chief Inspector Julius Ceasar Ablang
(Ablang) who held a briefing on the role of each team member and on the conduct of the
surveillance on Ariel at the Travelers' Inn located at Barangay Pagsawitan, Sta. Cruz,
Laguna, to determine whether the place is fit for the proposed buy-bust operation. Present
during the briefing were Police Chief Inspector Raul Bergamento, Ablang, Villanueva,
SPO2 Marcelino Male, Abalos (Abalos), SPO1 Jesus P. Platon, SPO1 Miguel Lapitan,
Jr., PO3 Andres Hagan, and PO3 Sherwin G. Bulan. Villanueva, who would act as
poseur-buyer, was given two (2) five-hundred-peso bills[7] and the boodle money which
she all marked "MTV"[8] representing her initials, while Abalos was assigned as the back-
up arresting officer. On that same day, Villanueva, Abalos, and the informant proceeded
to the Travellers' Inn to survey the place. After the survey, Villanueva and Abalos
reported to their office that the place would be suitable for a buy bust operation.
Thereafter, the pre-operation report[9] was prepared.[10]

The following day, at about 5:00 p.m., the informant called Ariel to tell him he already
had a buyer of the shabu; Ariel replied that he was already preparing the items. The team,
consisting of those who attended the earlier briefing, and PO1 Carla Mayo, proceeded to
Barangay Pagsawitan and arrived threat at about 8:00 p.m. Villanueva and the informant
parked their vehicle in front of the Travelers' Inn while the other vehicle carrying the rest
of the team was strategically parked fifteen (15) meters away from them. [11]

Immediately, the informant called Ariel to inform that he and the would-be buyer of the
shabu were already at the vicinity of the Travelers' Inn. Ariel replied that they were
already preparing the shabu. At about 9:00 p.m., Ariel arrived on his red tricycle with
plate number WJ 7610. The informant told Ariel to board the vehicle that he and
Villanueva rode in and introduced Ariel to Villanueva who, in turn, introduced herself as
the buyer and was interested in buying 15 grams of shabu for P60,000.00. When Ariel
asked Villanueva if she had the money, she showed him a maroon pouch supposedly
containing the payment but which were actually only two marked P500.00 bills and the
boodle money. When asked about the shabu, Ariel said he did not bring it as he needed to
confirm whether they had the money, as instructed by Diosa. Thereafter, Ariel got off the
vehicle.[12]

After an hour, Ariel returned to the Travelers' Inn on board the same tricycle. He got on
the same vehicle that Villanueva and the informant were in. Once inside, Ariel took from
the right front pocket of his short pants three (3) transparent plastic sachets filled with
white crystalline substance which he handed to Villanueva. When Ariel demanded the
payment, Villanueva handed the boodle money; but before Ariel could realize it was
boodle money, Villanueva turned on the hazard lights of the vehicle, the pre-arranged
signal that the transaction had been consummated. Abalos and the rest of the team rushed
to the vehicle and assisted Villanueva in arresting Ariel. Abalos recovered the buy-bust
money from Ariel and informed him of his constitutional rights. On the way to the PDEA
office, Villanueva personally placed the markings Exh. "A" MTV 26/11/05, Exh. "B"
MTV 26/11/05, and Exh. "C" MTV 26/11/05 on each of the three transparent plastic
sachets.[13]

Ariel was brought to the PDEA office for proper disposition and was photographed with
the confiscated drugs. The booking sheet and arrest report[14] were likewise prepared. His
true name was later identified as Ariel Calvelo y Consada. [15] Villanueva, as the poseur-
buyer, and Abalos, as the arresting officer, executed their respective affidavits. [16]

On 27 November 2005, at 1:40 a.m., the three marked heated transparent sachets
containing the substance suspected as shabu, with the signature of Villanueva, were
submitted by her and Abalos to the Chief, PNP Regional Crime Laboratory Office 4
(laboratory) for examination.[17]

On the same day, the laboratory, through Huelgas, released the report [18] on the
confiscated items. The pertinent portion of the report reads:

SPECIMEN SUBMITTED

Three (3) heat-sealed transparent plastic sachets, each containing moist/white crystalline
substance of the following markings (with signature) and net weights:

A (EXH A MTV 26/11/06)- 4.71 grams

B (EXH B MTV 26/11/06) - 4.72 grams
C (EXH C MTV 26/11/06)- 4.64 grams
x-x-x x-x-x

PURPOSE OF LABORATORY EXAMINATION

To determine the presence of dangerous drugs in the above mentioned specimen.

x-x-x x-x-x

FINDINGS

Qualitative examination conducted on specimen A through C gave POSITIVE result to

the tests for the presence of Methamphetamine hydrochloride, a dangerous drug.

The Version of the Defense

Ariel tried to prove his defense through his testimony and that of his elder brother, Jimmy
Calvelo (Jimmy).

Ariel testified that on 26 November 2005, at around 11:00 p.m., he was about to close the
billiard hall located at Barangay Biñan, Pagsanjan, Laguna, where he works as a spotter,
when Jimmy arrived requesting that he buy him noodles from the Travelers' Inn. He
complied and rode a pedicab to the Travelers' Inn. While waiting for his order, he got
bored and went to the back portion of the establishment when, suddenly, five armed men
came shouting at him "dapa, dapa, dapa." While lying down with his face on the floor,
somebody stepped on his back while another was saying "handcuff, handcuff." Because
there were no handcuffs, somebody tied him up using a belt and then he was carried to a
tinted vehicle. He was told "nahuli ka na din namin"; but when he asked why he was
being held, they asked for his name instead. When he told them that his name was Ariel,
they got mad at him and asked him again for his name. He told them that his name was
Ariel Calvelo. When the vehicle arrived at the Santa Cruz municipal building, he was
transferre to another vehicle together with Abalos, who pulled his hair and later got a key
from his (Abalos) pocket and scratched this on Ariel's head.[19]

The vehicle he was made to board together with five other persons proceeded to the
PDEA office in Canlubang, Laguna. While inside the vehicle, he was punched and hit on
the head. His hands were untied and later handcuffed. He was brought inside the PDEA
office where they asked his name and told him to cooperate. When he told them that he
did not know anything, his handcuffs were removed and he was incarcerated. It was only
at the Fiscal's office that he knew he was being charged with violation of Sec. 5, R.A. No.
9165. He saw Villanueva only at the PDEA office.[20]

He came to know of Diosa when the latter was detained at the Laguna provincial jail.
When he asked Diosa why he (Ariel) was being implicated in the case, Diosa informed
him that the place his (Ariel's) brother was renting was very near the place where he
(Diosa) was staying. He also learned that Diosa's house was located on the same street as
the billiard hall where he worked. He was incarcerated in 2005; Diosa in 2009. [21]

Jimmy testified that on 26 November 2005, at around 11:00 a.m., he was at his horse
located at Barangay Biñan, Pagsanjan, Laguna, doing overtime work when he got hungry.
He went to the billiard hall where Ariel was working and asked its owner, Melissa
Maceda (Maceda) to allow Ariel to buy noodles for him at the Travelers' Inn. Maceda
allowed Ariel to buy the noodles after he closed down the billiard hall. Ariel took a
pedicab to the Travelers' Inn.[22]

When Ariel failed to return after an hour, Jimmy went to the Travelers' Inn and asked the
people around whether they had seen Ariel. He was told by Junior, a tricycle driver, that
Ariel was picked up by police officers. He went to the Santa Cruz precinct but did not
find Ariel there. After three days, upon being informed that Ariel had been apprehended
by PDEA members, he went to the PDEA office.[23]

The Ruling of the RTC

WHEREFORE, premises considered, this court finds the accused ARIEL CALVELO y
CONSADA GUILTY BEYOND REASONABLE DOUBT of Violation of Section 5,
Article II, R.A. 9165 and he is hereby sentenced to suffer the penalty of life
imprisonment and to pay a fine of One Million Pesos (P1,000,000.00)
The specimens of shabu subjects of this case with a total weight of 14.07 grams are
ordered confiscated in favour of the government and the Branch Clerk of Court is hereby
ordered to transmit the same to the appropriate government agency for proper disposition.

SO ORDERED.

The Ruling of the CA

The CA ruled that the prosecution was able to establish the identity of Ariel as the drug
dealer and the manner by which the illegal sale of the dangerous drug took place. It held
that regardless of whether Villanueva acted as a mere bystander during the transaction,
she still had the obligation to apprehend Ariel because she was a police officer in whose
presence a crime was being committed. Granting that she was a bystander, Villanueva
could testify as to the transaction since she was an eyewitness. On the claim of Ariel that
the informant was not presented, the CA held that this was not fatal to the case of the
prosecution since the informant's testimony was only corroborative, thus, it may be
dispensed with.[24]

The CA found that the chain of custody over the seized drugs was maintained by the
apprehending officers, viz: Villanueva marked and affixed her signature on the three
heat-sealed transparent sachets handed to her by Ariel. After the inventory of the seized
items, Villanueva and Abalos brought the items to the laboratory for examination; a
report from the laboratory confirmed that the moist/white crystalline substance on the
three sachets tested positive for shabu.[25] The dispositive portion of the CA decision
reads:

WHEREFORE, premises considered, the appeal filed by Ariel Calvelo y Consada

is DISMISSED. The Judgment of the Regional Trial Court of Santa Cruz, Laguna,
Branch 28 in Criminal Case No. SC-11953 is AFFIRMED.

SO ORDERED.

ISSUES

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE

PROSECUTION'S VERSION DESPITE THE PATENT IRREGULARITIES IN THE
CONDUCT OF THE BUY BUST OPERATION

II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME CHARGED DESPITE THE PROSECUTION'S
FAILURE TO ESTABLISH THE IDENTITY AND INTEGRITY OF THE ALLEGED
CONFISCATED DRUGS CONSTITUTING THE CORPUS DELICTI OF THE CRIME

III.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.

OUR RULING

The appeal is without merit.

The elements of violation of Sec.

5, Art. II of R.A. No. 9165 had been
proven beyond reasonable doubt.

Continuing accretions of jurisprudence restate the requirements to secure a conviction for

illegal sale of dangerous drugs under Sec. 5,[26] Art. II of R.A. No. 9165, viz: (1) the
identity of the buyer and the seller; (2) the object and the consideration; and (3) the
delivery of; the thing sold and the payment therefor.[27] What is important is that the sale
transaction of drugs actually took place and that the object of the transaction is properly
presented as evidence in court and is shown to be the same drugs seized from the
accused.[28]

Ariel was positively identified by Villanueva and Abalos during the hearing as the drug
seller. According to Villanueva, she had the opportunity to personally talk with Ariel
when, on 26 November 2005, he boarded twice the vehicle she was riding in, viz: the first
was at about 9:00 p.m. when she was introduced to him as the buyer of 15 grams of shabu
priced at P60,000.00 and she showed him the maroon pouch containing the alleged
payment for such; and the second was when he returned after an hour to deliver the shabu
and to receive the payment.

Abalos, assigned as the arresting officer, was inside another vehicle that was strategically
parked away from Villanueva's vehicle which he saw Ariel boarding twice. When
Villanueva turned on the hazard lights, the pre arranged signal that the transaction was
already consummated, Abalos and his companions rushed to the vehicle and arrested
Ariel. Abalos then recovered the buy-bust money from him.

Ariel posits that it was the informer, and not Villanueva, who had personal knowledge of
the alleged drug transaction and was the poseur buyer. He maintained that Villanueva
was a mere bystander whose sole and hearsay testimony could not be made the basis of
his conviction. To prove his point, Ariel cited the case of People v. Rojo,[29] where the
Court found a fatal flaw in the prosecution's evidence, among others, on how the alleged
entrapment proceedings took place; and in its failure to present the informant who would
have been its best witness.[30]

We do not subscribe to Ariel's position.

Records show that it was Villanueva who was the buyer in the subject transaction for the
sale of shabu. The informant merely acted as the middleman between Villanueva, as
buyer, and Ariel, as seller. As testified to by Villanueva and Abalos, on 26 November
2005, at about 5:00p.m. at the PDEA office, the informant called up Ariel to inform him
that he (informant) already had a buyer, to which Ariel replied that he was already
preparing the shabu. The following day, the informant called up Ariel again, this time to
say that he and the would-be buyer were already at the Travelers' Inn. When they met,
Villanueva introduced herself as the buyer of the shabu. When Ariel had made sure that
Villanueva had with her the money to pay for the items, he handed her the three
transparent plastic sachets containing the shabu and she, in turn, handed him the marked
and boodle money.

Contrary to Ariel's claim, the factual milieu in Rojo is completely different from the case
at bar. In Rojo, it was the informant who acted as the poseur-buyer of marijuana during
the buy-bust operation. A member of the buy-bust team was positioned 5 to 7 meters
away from the informant while the transaction was taking place, while two other
members of the team were inside their vehicle parked one hundred meters away from the
scene.

During the hearing in Rojo, the informant who acted as buyer was not put on the witness
stand by the prosecution. His identity was not revealed for being confidential
information. Significantly, the evidence of the prosecution as to the informant's
participation as buyer during the entrapment proceeding was contradictory, viz: a
patrolman testified that it was another patrolman who acted as poseur-buyer; while
another patrolman testified that it was the informant who acted as such. The Court held
that the fatal flaw in the prosecution's evidence was its failure to establish how the
alleged entrapment proceedings took place, and to prove beyond reasonable doubt the
actual participation of the informant during the buy-bust operation, thus, casting doubt on
whether the entrapment proceedings even took place.

Compared with this case, Villanueva had first-hand knowledge of what transpired during
the transaction with Ariel. She actually dealt with Ariel, i.e., from receiving the shabu
from him to her actual payment for the delivered item. Indeed, the prosecution was
correct in presenting Villanueva to fortify its case against Ariel as she personally knew
the details of the transaction that took place on the night of 27 November 2005.

Case law imparts the "objective test" in a buy-bust operation as follows:

We therefore stress that the "objective" test in buy-bust operations demands that the
details of the purported transaction must be clearly and adequately shown. This must start
from the initial contact between the poseur-buyer and the pusher, the offer to purchase,
the promise or payment of the consideration until the consummation of the sale by the
delivery of the illegal drug subject of the sale. The manner by which the initial contact
was made, whether or not through an informant, the offer to purchase the drug, the
payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit an offense.
Criminals must be caught but not at all costs. At the same time, however, examining the
conduct of the police should not disable courts into ignoring the accused's predisposition
to commit the crime. If there is overwhelming evidence of habitual delinquency,
recidivism or plain criminal proclivity, then this must also be considered. Courts should
look at all factors to determine the predisposition of an accused to commit an offense in
so far as they are relevant to determine the validity of the defense of inducement. [31]

Evaluation of the records applying the "objective test" will prove that the prosecution was
able to establish beyond moral certainty the details of the transaction that took place
between Villanueva and Ariel from the offer to purchase shabu until the consummation
of the sale. Consequently, the claim of Ariel that the poseur - buyer failed to present
evidence on how the illegal drugs were recovered - raising doubts about a buy-bust
having been actually conducted and warranting a suspicion that the prohibited drugs were
planted[32] - miserably weakened in the light of the convincing and credible testimony of
the prosecution witnesses.

There was apparently no need for the prosecution to present the informant if only to
determine whether there was a prior drug deal between him and Ariel. The informant's
testimony would only corroborate that of Villanueva and Abalos who both testified that
the informant contacted Ariel on 26 and 27 November 2005 on the drug deal, and which
transaction indeed took place when Ariel actually delivered the shabu to Villanueva on
27 November 2005. The sale, to stress, was between Ariel and Villanueva. We quote our
ruling in People v. Bartolome,[33] viz:

Similarly, the presentation of an informant as a witness is not regarded as indispensable

to the success of a prosecution of a drug-dealing accused. As a rule, the informant is not
presented in court for security reasons, in view of the need to protect the informant from
the retaliation of the culprit arrested through his efforts. Thereby, the confidentiality of
the informant's identity is protected in deference to his invaluable services to law
enforcement. Only when the testimony of the informant is considered absolutely essential
in obtaining the conviction of the culprit should the need to protect his security be
disregarded.
It is underscored that factual findings of the trial court, including its assessment of the
credibility of the witnesses and the probative weight thereof, as well as the conclusions of
the trial court based on its factual findings, are accorded high respect, if not conclusive
effect, especially if affirmed by the CA, except when facts or circumstances of weight
and influence were overlooked or the significance of which was misappreciated or
misinterpreted by the lower courts.[34] The record is bereft of any showing that Ariel was
able to persuasively bring his case within the jurisprudentially established exception to
the rule; hence, we defer to the factual findings of the RTC in the absence of any
compelling cause or impetus to disturb the same.

There was an unbroken chain of

custody of the seized drugs.

In all prosecutions for violations of R.A No. 9165, the corpus delicti is the dangerous
drug itself.[35] The corpus delicti is established by proof that the identity and integrity of
the subject matter of the sale, i.e., the prohibited or regulated drug, has been preserved;
[36]
 hence, the prosecution must establish beyond reasonable doubt the identity of the
dangerous drug to prove its case against the accused. The prosecution can only forestall
any doubts on the identity of the dangerous drug seized from the accused to that which
was presented before the trial court if it establishes an unbroken chain of custody over the
seized item. The prosecution must be able to account for each link in the chain of custody
over the dangerous drug, from the moment of seizure up to its presentation in court as
evidence of the corpus delicti.[37] In other words, it must be established with unwavering
exactitude that the dangerous drug presented in court as evidence against the accused is
the same as that seized from him in the first place.[38]

In Sec.1 (b) of the Dangerous Drugs Board (DDB) Regulation No. 1, Series of 2002,
[39]
 the DDB - the policy-making and strategy-formulating body in the planning and
formulation of policies and programs on drug prevention and control and tasked to
develop and adopt a comprehensive, integrated, unified and balanced national drug abuse
prevention and control strategy[40] - has defined chain of custody involving the dangerous
drugs and other substances in these following terms:

b. "Chain of Custody" means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and use in court as evidence,
and the final disposition.[41]
Sec. 21[42] in R.A. No. 9165 provides the specific manner on the custody and disposition
of seized drugs and paraphernalia, which is further elaborated in its Implementing Rules
and Regulations[43] (IRR). It is understandable that the legislature had taken great pains in
providing for Sec. 21 in R.A. No. 9165 as to the manner by which the seized items shall
be kept and disposed of as this will be the safety precaution against potential abuses by
law enforcement agents who might fail to appreciate the gravity of the penalties faced by
those suspected to be involved in the sale, use or possession of illegal drugs. [44]

In consonance with DDB's definition of chain of custody, judicial

pronouncement[45] dictated its meaning as follows:

Chain of custody is defined as "the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction." Such record of
movements and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and use in court as evidence,
and the final disposition.

It must be considered that narcotic substances are not readily identifiable and are highly
susceptible to alteration, tampering or contamination.[46] Thus, there are links that must be
established in the chain of custody in a buy-bust situation, viz: first, the seizure and
marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized by the apprehending
officer to the investigating officer; third, the turnover by the investigating officer of the
illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover
and submission of the marked illegal drug seized from the forensic chemist to the court.
[47]

The legal teaching on the first link is as follows:

The first stage in the chain of custody is the marking of the dangerous drugs or related
items. Marking, which is the affixing on the dangerous drugs or related items by the
apprehending officer or the poseur-buyer of his initials or signature or other
identifying signs, should made in the presence of the apprehended violator
immediately upon arrest. The importance of the prompt marking cannot be denied
because succeeding handlers of the dangerous drugs or related items will use the marking
as reference. Also, the marking operates to set apart as evidence the dangerous drugs or
related items from other material from the moment they are confiscated until they are
disposed of at the close of the criminal proceedings, thereby forestalling switching,
planting, or contamination of evidence. In short, the marking immediately upon
confiscation or recovery of the dangerous drugs or related items is indispensable in
the preservation of their integrity and evidentiary value.[48]

Villanueva testified that immediately after the buy-bust operation and on board the
vehicle on the way to the PDEA office, she placed on each of the three sachets handed to
her by Ariel the markings Exh. "A" MTV 26/11/05, Exh. "B" MTV 26/11/05, and Exh.
"C" MTV 26/11/05 and affixed her signature thereon. The markings were made by
Villanueva in the presence of Ariel since they were on board the same vehicle. Records
likewise show a certificate of inventory[49] signed by Ablang as team leader, and with
elected public official A. Pangilinan and media representative Bell Desolo, as witnesses
to the inventory. The certificate of inventory denoted the following seized items during
the buy-bust operation, to wit:

THREE (3) PIECES OF HEAT-SEALED TRANSPARENT PLASTIC SACHET

CONTAINING WHITE SUBSTANCE OF SUSPECTED SHABU MARKED EXH.
"A," "B," AND "C" "MTV" 26/11/05 WITH THE SIGNATURE OF THE POSEUR-
BUYER

ONE (1) KAWASAKI 125 c.c. (COLORED RED) WTH SIDECAR (COLORED BLUE)
PLATE NO. WJ 7610

TWO (2) PIECES OF FIVE HUNDRED PESO BILL (P500.00) W/ SERIAL NOS.
SU132935 AND FK512868 USED AS MARKED MONEY TOGETHER WITH
SEVERAL PIECES OF BOODLE MONEY IN THE CONDUCT OF BUY-BUST
OPERATION.

On the second link, as the poseur-buyer and as a member of the buy-bust team,
Villanueva was in possession of the drugs seized from Ariel. Villanueva marked and
affixed her signature on the seized items. The seized items did not change hands, thus,
there was no break in the second link.

On the third link, Villanueva and Abalos testified that they were the ones who turned
over to the laboratory for examination the "three (3) heat-sealed transparent plastic
sachets containing white crystalline substance suspected to be shabu with marking EXH
'A' to 'C' MTV' 26/11/05 and signature of the poseur-buyer." The memorandum[50] of
Lemos containing the request for examination showed that this, together with the seized
drugs, was received by the laboratory on 1:40 a.m. on 27 November 2005, or about two
hours from the actual buy-bust operation. The person from the laboratory who received
the memorandum and the confiscated drugs affixed his signature on the memorandum
and even assigned a control number for the request. On the same day, Huelgas released
her report on the qualitative examination on the specimens.
On the fourth link, Huelgas was no longer put on the witness stand with the admission by
the defense that her testimony would be on the identification of her report and the seized
drugs.[51]

Irrefragably, the prosecution was able to convincingly establish an unbroken chain in the
custody of the seized drugs in compliance with Sec. 21, Art. II, R.A. No. 9165 and its
IRR; hence, the integrity and evidentiary value of the confiscated drugs had not been
compromised.

On the one hand, there is an enlightened precedent[52] to serve as guide relevant to the
persistent allegations of the accused-appellant on the alleged failure of the police officers
to strictly comply with Sec. 21, Art. II, R.A. No. 9165, and consequently render the
seized drugs as inadmissible, viz:

From the point of view of jurisprudence, we are not beating any new path by holding that
the failure to undertake the required photography and immediate marking of seized items
may be excused by the unique circumstances of a case. In People v. Resurreccion, we
already stated that ''marking upon immediate confiscation" does not exclude the
possibility that marking can be at the police station or office of the apprehending team. In
the cases of People v. Rusiana, People v. Hernandez, and People v. Gum-Oyen, the
apprehending team marked the confiscated items at the police station and not at the place
of seizure. Nevertheless, we sustained the conviction because the evidence showed that
the integrity and evidentiary value of the items seized had been preserved. To reiterate
what we have held in past cases, we are not always looking for the strict step-by-step
adherence to the procedural requirements; what is important is to ensure the
preservation of the integrity and the evidentiary value of the seized items, as these
would determine the guilt or innocence of the accused. We succinctly explained this
in People v. Del Monte when we held:

We would like to add that noncompliance with Section 21 of said law, particularly
the making of the inventory and the photographing of the drugs confiscated and/or
seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule
128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is
not excluded by the law or these rules. For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule, the evidence must
be admitted subject only to the evidentiary weight that will [be] accorded it by the courts.
Xxx

We do not find any provision or statement in said law or in any rule that will bring
about the non-admissibility of the confiscated and/or seized drugs due to
noncompliance with Section 21 of Republic Act No. 9165. The issue therefore, if
there is noncompliance with said section, is not of admissibility, but of weight —
evidentiary merit or probative value — to be given the evidence. The weight to be
given by the courts on said evidence depends on the circumstances obtaining in each
case. (citations omitted)

The evidence on record heavily

weighs in favour of the presumption of
regularity in the performance of official
duty.

Ariel asserted that the presumption of regularity in the performance of official duty by
itself cannot overcome the presumption of innocence or constitute proof beyond
reasonable doubt.[53]

It cannot be overemphasized that in cases involving violations of the Dangerous Drugs

Act of 2002, as amended, credence should be given to the narration of the incident by the
prosecution witnesses especially when they are police officers who are presumed to have
performed their duties in a regular manner, unless there is evidence to the contrary. [54] The
presumption, rebuttable by affirmative evidence of irregularity or of any failure to
perform a duty, is based on three fundamental reasons, namely: first, innocence, and not
wrongdoing, is to be presumed; second, an official oath will not be violated; and, third, a
republican form of government cannot survive long unless a limit is placed upon
controversies and certain trust and confidence reposed in each governmental department
or agent by every other such department or agent, at least to the extent of such
presumption.[55]

Ariel failed to show any convincing evidence to warrant a finding that the police officers
had not performed their official duties in the manner prescribed by law. Indeed, there was
no shred of evidence that would even remotely indicate that the police officers had ill
motive to ascribe to Ariel the commission of a grave crime. Absent any clear showing
that the arresting officers had ill motive to falsely testify against the appellant, their
testimonies must be respected and the presumption of regularity in the performance of
their duties must be upheld.[56]

In stark contrast to this presumption, the self-serving denial of Ariel failed to put a dent
on the prosecution's evidence. Ariel, to stress, was caught in flagrante delicto in a
legitimate buy-bust operation. His defense of denial or frame-up has been invariably
viewed with disfavor for it can easily be concocted and is a common defense ploy in
prosecutions for violation of R.A. No. 9165.[57]

WHEREFORE, all premises considered, the Decision of the Court of Appeals in CA-
G.R. CR-HC No. 06190 is hereby AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson) and Leonen, JJ., concur.

 FIRST DIVISION
[ G.R. No. 202206, March 05, 2018 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TENG
MONER Y ADAM, ACCUSED-APPELLANT.

DECISION

LEONARDO-DE CASTRO, J.:**

This is an appeal of the Decision[1] dated July 27, 2011 of the Court of Appeals in
CA-G.R. CR-H.C. No. 04399 entitled, People of the Philippines v. Teng Moner y
Adam, which affirmed the Joint Decision[2] dated August 4, 2009 of the Regional Trial
Court (RTC) of Quezon City, Branch 95 in Criminal Case Nos. Q-05-133982 and Q-05-
133983. Anent Criminal Case No. Q-05-133982, the trial court found appellant Teng
Moner y Adam (Moner) guilty beyond reasonable doubt of violating Section 5, Article II
(sale of dangerous drugs) of Republic Act No. 9165 otherwise known as the
Comprehensive Dangerous Drugs Act of 2002. In the same judgment, Moner and his co-
accused were acquitted of the charge of violating Section 11, Article II (possession of
dangerous drugs) of the same statute which was the subject of Criminal Case No. Q-05-
133983.

The crime of which Moner was convicted is described in the Information dated April 25,
2005, as follows:

That on or about the 23rd day of April, 2005, in Quezon City, Philippines, the said
accused, not being authorized by law to sell, dispense, deliver, transport or distribute
any dangerous drug, did then and there, willfully and unlawfully sell, dispense, deliver,
transport, distribute or act as broker in the said transaction, three point ninety-one
(3.91) grams of methylamphetamine hydrochloride, a dangerous drug. [3]

Subsequently, on May 16, 2005, Moner pleaded "NOT GUILTY" to the aforementioned
charge of illegal sale of dangerous drugs upon his arraignment. [4]
In its assailed Decision, the Court of Appeals presented the factual milieu of this case in
this manner:

To establish the guilt of accused-appellant, the prosecution presented three (3)

witnesses namely: PO2 Joachim Panopio, PO3 Junnifer Tuldanes and PO3 Edwin Lirio.

The prosecution's evidence tends to establish the following facts:

On April 23, 2005, the police operatives of Las Piñas Police Station Anti-Illegal Drugs
Special Operation Task Force (SAIDSOTF) had arrested a certain Joel Taudil for
possession of illegal drugs. Upon investigation, they gathered from Taudil that the
source of the illegal drugs was Teng Moner (herein accused-appellant) who hails from
Tandang Sora, Quezon City.

As per this information, Police Chief Inspector Jonathan Cabal formed a team that would
conduct a buy-bust operation for the apprehension of accused-appellant. The team was
composed of himself, SPO4 Arnold Alabastro, SPO1 Warlie Hermo, PO3 Junnifer
Tuldanes, PO3 Edwin Lirio, PO2 Rodel Ordinaryo, PO1 Erwin Sabbun and PO2 Joachim
Panopio. The marked and boodle money were given to PO2 Panopio who acted as the
poseur-buyer.

Before proceeding with the buy-bust operation, the team prepared the pre-operation
report addressed to the Philippine Drug Enforcement Agency (PDEA), the authority to
operate outside their jurisdiction and the coordination paper. Thereafter, they
proceeded to the Central Police District Office (CPDO), Camp Karingal, Quezon City for
proper coordination. Thereafter, the team together with Taudil and a CPD-DIID
personnel proceeded [to] No. 26 Varsity Lane, Barangay Culiat, Tandang Sora, Quezon
City. Upon reaching the place they made a surveillance and assumed their respective
positions.

At the target area, PO2 Panopio and Taudil went to accused-appellant's house. While
outside the gate, Taudil summoned accused-appellant and the latter came out after a
few minutes. The two men talked with each other in the Muslim dialect. Taudil
introduced PO2 Panopio as his friend to accused-appellant and told him that PO2
Panopio was interested to buy shabu.  PO2 Panopio asked for the price of five (5) grams
of shabu.  Accused-appellant replied that the same would cost him P8,000.00 and asked
him if he has the money. When PO2 Panopio confirmed that he has the money with
him, accused-appellant asked them to wait and he went inside the house. When he
returned after a few minutes, he handed a plastic sachet containing a substance
suspected as shabu to PO2 Panopio who in turn gave him the marked and boodle
money. Accused-appellant was about to count the money when PO2 Panopio gave the
pre-arranged signal to his team and introduced himself as [a] police officer.

Accused-appellant resisted arrest and ran inside the house but PO2 Panopio was able to
catch up with him. The other members of the team proceeded inside the house and
they saw the other accused gather[ed] around a table re-packing shabu. PO3 Lirio
confiscated the items from them and placed the same inside a plastic bag.

After accused-appellant and his co-accused were arrested, the team proceeded to the
Las Piñas City Police Station. The items confiscated from them were turned over by PO2
Panopio to PO3 Dalagdagan who marked them in the presence of the police operatives,
accused-appellant and his co-accused. PO3 Dalagdagan prepared the corresponding
inventory of the confiscated items. The specimens were then brought to the police
crime laboratory for testing. The specimens yielded positive to the test for
methylamphetamine hydrochloride or shabu.

Consequently, a case for Violation of Section 5, Article II of R.A. 9165 was filed against
accused-appellant and another for Violation of Section 11, Article II of R.A. 9165 against
him and his co-accused.

In refutation of the prosecution's version, the defense presented four (4) witnesses, to
wit: Judie Durado, Fatima Macabangen, accused-appellant and Richard Pascual.

It is the contention of the defense that on April 23, 2005, accused-appellant and his co-
accused in Criminal Case No. Q-05-133983 were at the house located along No. 26
Varsity Lane, Philam, Tandang Sora, Quezon City to prepare for the wedding of Fatima
Macabangen and Abubakar Usman to be held the following day. While they were inside
the house, several armed persons wearing civilian clothes entered and announced that
they were police officers. They searched the whole house and gathered all of them in
the living room.

The police officer who was positioned behind accused-appellant and Abubakar dropped
a plastic sachet. The former asked accused-appellant and Abubakar who owns the
plastic sachet. When accused-appellant denied its ownership, the police officer slapped
him and accused him of being a liar. Thereafter, they were all frisked and handcuffed
and were brought outside the house. Their personal effects and belongings were
confiscated by the police officers. Then they boarded a jeepney and were brought to
[the] Las Piñas Police Station.

Upon their arrival, they were investigated. A police officer asked them to call up
anybody who can help them because they only needed money for their release. Judie
Dorado called up [his] mother. They saw the other items allegedly confiscated from
them only at the police station. At around 10:00 o'clock in the evening, they were
brought to Camp Crame, Quezon City. From there, they went to Makati for drug testing
and were returned to Las Piñas Police Station.

Subsequently, cases for Violation of R.A. No. 9165 were filed against them. [5]

After receiving the evidence for both sides, the trial court convicted Moner on the
charge of selling shabu while, at the same time, acquitting him and his co-accused of the
charge of possession of illegal drugs. The dispositive portion of the August 4, 2009 Joint
Decision of the trial court reads:

WHEREFORE, the Court renders its Joint Decision as follows:

1. In Criminal Case No. Q-05-133982:

The Court finds accused TENG MONER Y ADAM "GUILTY" beyond reasonable doubt for
violation of Section 5, Article II of R.A. 9165 or illegal selling of three point ninety-one
(3.91) grams of methylamphetamine hydrochloride, a dangerous drug and he is hereby
sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE of FIVE
HUNDRED THOUSAND PESOS (Php500,000.00).

2. In Criminal Case No. Q-05-133983:

The Court finds accused TENG MONER Y ADAM, JUDIE DURADO Y MACABANGEN,
FATIMA MACABANGEN Y NUÑEZ, ABUBAKAR USMAN Y MASTORA, GUIAMIL ABU Y
JUANITEZ, NORODIN USMAN Y MASTORA, RICHARD PASCUAL Y TANGALIN and AMINA
USMAN-MONER "NOT GUILTY" for violation of Section 11, Art. II of R.A. 9165
considering that the prosecution failed to prove their guilt beyond reasonable doubt.

The pieces of evidence subject matter of Crim. Case No. Q-05-133983 are hereby
ordered to be safely delivered to the Philippine Drug Enforcement Agency for proper
disposition.[6]

As can be expected, Moner elevated his case to the Court of Appeals which,
unfortunately for him, ruled to affirm the findings of the trial court and dispositively
held:

WHEREFORE, the appealed Decision dated August 4, 2009 of the Regional Trial
Court, Branch 95, Quezon City in Criminal Case No. Q-05-133982 finding accused-
appellant guilty beyond reasonable doubt is hereby AFFIRMED. [7]

Hence, Moner interposes this appeal wherein he reiterates the same errors on the part
of the trial court contained in his Brief filed with the Court of Appeals, to wit:

A. THE COURT A QUO SERIOUSLY ERRED WHEN IT ISSUED ITS DECISION DATED
AUGUST 4, 2009 FINDING THE ACCUSED-APPELLANT MONER GUILTY BEYOND
REASONABLE DOUBT OF VIOLATING SECTION 5, ARTICLE II OF R.A. 9165, WHEN THE
TESTIMONIES OF THE THREE (3) PROSECUTION WITNESSES (PO2 JOACHIM PANOPIO,
PO3 JUNNIFER TULDANES, AND PO3 EDWIN LIRIO) ARE HIGHLY INCREDIBLE AND
UNBELIEVABLE TO PROVE THE ALLEGED BUY-BUST.

B. THE COURT A QUO SERIOUSLY ERRED IN ITS DECISION WHEN IT RELIED SOLELY ON
THE PERJURED TESTIMONIES OF THE PROSECUTION WITNESSES POLICE OFFICERS
WHICH ARE FULL OF INCONSISTENCIES.

C. THE COURT A QUO SERIOUSLY ERRED IN ISSUING THE ASSAILED DECISION WHEN IT
FAILED TO GIVE CREDENCE TO THE TESTIMONIES OF THE DEFENSE WITNESSES WHO
CLEARLY TESTIFIED THAT THERE WAS REALLY NO BUY-BUST AND THAT APPELLANT
MONER WAS NOT SELLING ANY PROHIBITED DRUGS.

D. THE COURT SERIOUSLY ERRED WHEN IT ISSUED THE ASSAILED DECISION DESPITE THE
FACT THAT THE PROSECUTION WITNESSES FAILED TO COMPLY WITH THE MANDATORY
PROVISION OF SEC. 19 OF R.A. NO. 9165, ON THE MATTER OF PHYSICAL INVENTORY,
AND PICTURE TAKING OF THE EVIDENCE ALLEGEDLY SEIZED FROM THE ACCUSED, AS
WELL AS THE PROVISION OF SECTION 86 THEREOF.[8]
In sum, Moner maintains that the prosecution failed to discharge its burden of proof to
sustain his conviction for the charge of sale of dangerous drugs. He highlights the fact
that the prosecution failed to present in court the informant who pointed to him as a
supplier of shabu. He also stresses that the buy-bust operation was conducted without
proper coordination with the Philippine Drug Enforcement Agency (PDEA). Likewise, he
derides the testimonies of the prosecution witnesses as inconsistent, incredible and
unworthy of belief. Most importantly, he underscores the failure of the arresting officers
to comply with the statutorily mandated procedure for the handling and custody of the
dangerous drugs allegedly seized from him.

The appeal is without merit.

For a successful prosecution of an offense of illegal sale of dangerous drugs, the

following essential elements must be proven: (1) that the transaction or sale took place;
(2) that the corpus delicti or the illicit drug was presented as evidence; and (3) that the
buyer and seller were identified.[9]

A perusal of the records of this case would reveal that the aforementioned elements
were established by the prosecution. The illegal drugs and the marked money were
presented and identified in court. More importantly, Police Officer (PO) 2 Joachim
Panopio (PO2 Panopio), who acted as poseur-buyer, positively identified Moner as the
seller of the shabu to him for a consideration of P8,000.00.

With regard to Moner's contention that the prosecution's failure to present the
informant in court diminishes the case against him, we reiterate our pronouncement on
this matter in the recent case of People v. Lafaran[10]:

It has oft been held that the presentation of an informant as witness is not
regarded as indispensable to the success of a prosecution of a drug-dealing accused. As
a rule, the informant is not presented in court for security reasons, in view of the need
to protect the informant from the retaliation of the culprit arrested through his efforts.
Thereby, the confidentiality of the informant's identity is protected in deference to his
invaluable services to law enforcement. Only when the testimony of the informant is
considered absolutely essential in obtaining the conviction of the culprit should the
need to protect his security be disregarded. In the present case, as the buy-bust
operation was duly witnessed by SPO2 Aro and PO3 Pera, their testimonies can take the
place of that of the poseur-buyer.

Thus, we concur with the appellate court's finding that there is no need to present the
informant because PO2 Panopio, who acted as the poseur-buyer, had testified in court.
Furthermore, the other members of the buy-bust team, namely PO3 Junnifer Tuldanes
(PO3 Tuldanes) and PO3 Edwin Lirio (PO3 Lirio), gave clear and credible testimonies with
regard to the criminal transaction that was consummated by appellant and PO2
Panopio.

In addition, we rule that inconsistencies in the testimonies of the prosecution witnesses

that were pointed out by Moner consist merely of minor variances that do not deviate
from the main narrative which is the fact that Moner sold illegal drugs to a poseur-
buyer. It has been held, time and again, that minor inconsistencies and contradictions in
the declarations of witnesses do not destroy the witnesses' credibility but even enhance
their truthfulness as they erase any suspicion of a rehearsed testimony. [11] It bears
stressing, too, that the determination by the trial court of the credibility of witnesses,
when affirmed by the appellate court, is accorded full weight and credit as well as great
respect, if not conclusive effect.[12]

Lastly, we can give no credence to Moner's contention that the prosecution failed to
prove an unbroken chain of custody in consonance with the requirements of law.

To ensure that the drug specimen presented in court as evidence against the accused is
the same material seized from him or that, at the very least, a dangerous drug was
actually taken from his possession, we have adopted the chain of custody rule. The
Dangerous Drugs Board (DDB) has expressly defined chain of custody involving
dangerous drugs and other substances in the following terms in Section 1(b) of DDB
Regulation No. 1, Series of 2002:

b. "Chain of Custody" means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the identity and signature
of the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and use in court as
evidence, and the final disposition[.]

In relation to this, Section 21 of Republic Act No. 9165 pertinently provides the
following:

SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall
take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof[.]

Furthermore, Section 21(a) of the Implementing Rules and Regulations (IRR) of Republic
Act No. 9165 relevantly states:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The
PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof; Provided,
that the physical inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that noncompliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items[.] (Emphasis supplied.)

We have consistently ruled that noncompliance with the requirements of Section 21 of

Republic Act No. 9165 will not necessarily render the illegal drugs seized or confiscated
in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is
not required if there is a clear showing that the integrity and evidentiary value of the
seized illegal drugs have been preserved, i.e.,  the illegal drugs being offered in court as
evidence is, without a specter of doubt, the very same item recovered in the buy-bust
operation.[13]

With regard to the foregoing, Moner asserts that he should be acquitted of the criminal
charges levelled against him specifically because of the following serious lapses in
procedure committed by the apprehending officers: (a) the physical inventory was not
conducted at the place where the seizure was made; (b) the seized item was not
photographed at the place of seizure; and (c) there was no physical inventory and
photograph of the seized item in the presence of the accused, or his representative or
counsel, with an elected public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies of the inventory and be
given a copy thereof.

The aforementioned concerns can be squarely addressed by a careful and assiduous

review of the records of this case accompanied by a liberal application and
understanding of relevant jurisprudence in support thereof. Both object and testimonial
evidence demonstrate that the apprehending officers were able to mark the dangerous
drugs seized and to prepare a physical inventory of the same at the Las Piñas Police
Station which was the place where Moner and his co-accused were brought for
processing. The following excerpts lifted from the transcript of the testimony of PO2
Panopio during trial confirm this fact:
Q Now, Mr. Witness, after your team recovered [the] evidence on top of the table inside
the house, arrested those persons whom you identified a while ago and also arrested Teng
Moner recovered from him the buy-bust money, what happened next?
A We brought them to the police headquarters.
Q In what headquarters did you bring the persons arrested?
A We brought them to Special Action... SAID-SOTF Las Piñas Police Station.
xxxx
Q Now, I would like to inform you that under Section 21 of the Republic Act 9165, the
arresting officer immediately after the arrest of the accused or the person buy-bust for
possession must prepare the inventory of seized evidence.
A Yes, sir.
Q What do you mean by "yes"?
A We did prepare an inventory, sir.
Q So, you are aware of that provision?
A I just forgot the Section 21, sir.
COURT: (to the witness)
Q You do not know that doing an inventory is a requirement under Section 21?
A Yes, your Honor.
PROS.: (to the witness)
Q Now, you said that you are aware of Section 21 an inventory must be made. Do you
know whether your team complied with that provision of the law upon reaching the station?
A Yes, sir,
Q What do you mean by "yes"?
A We made an Inventory Report, sir.
Q Where is now that Inventory Report?
A It's with the documents I submitted earlier in court, sir.
xxxx
PROS: (to the Court)
This piece of document handed by the witness your Honor, the Inventory of Property
Seized be marked as Exhibit "OOO".
COURT: (to the witness)
Q That is the original, Mr. Witness?
A Yes, your Honor.
xxxx
PROS.: (to the Court)
Q The signature of PO3 Rufino G. Dalagdagan under the heading "Received By:" be
bracketed and be marked as Exhibit "OOO-1"; the list of the articles appearing [in] the body of
Exhibit "OOO" be bracketed and be marked as Exhibit "OOO-2". This Receipt of Property
Turned-Over, your Honor, which states: "1, PO3 RUFINO G. DALAGDAGAN OF SAID-SOTF,
LAS PIÑAS CITY POLICE STATION, SPD hereby acknowledge received (sic) the items/articles
listed hereunder [from] PO2 JOACHIM P. PANOPIO" and may we request, your honor that
letters appearing on the top of the name TENG MONER ADAM, ET AL. (RTS) be marked as
Exhibit "OOO-3".
PROS.: (to the witness)
Q Where were you, Mr. Witness, when this Exhibit "OOO" was prepared?
A I was inside the office, sir.
Q Who prepared this Exhibit "OOO"?
A PO3 Rufino Dalagdagan, sir.
Q These items listed [in] the body of marked as Exhibit "OOO", who made these items?
A I, myself, sir.
Q Now, showing to you this Exhibit marked as "OOO-3" particularly on [the] letters RPS
appearing inside the parenthesis, who placed that entry (RPS)?
A Police Officer Dalagdagan, sir.
Q Where were you at the time when this (RPS) marked as Exhibit "OOO-3" was made?
A I was inside the office, sir.
Q Where were those persons whom your team arrested when this evidence marked
as Exhibit "OOO" was made?
A They were also inside the office, sir.
xxxx
Q You said a while ago that in consideration with the buy-bust money, you received
from the accused, Teng Moner, that plastic sachet containing shabu. Upon reaching the
station, what happened to the plastic sachet, subject matter of the buy-bust operation?
A I turned it over, sir.
Q To whom?
A PO3 Dalagdagan, sir.
Q And before you turned it over to the investigator, PO3 Dalagdagan, that shabu
subject matter of the buy-bust operation, what did you do with it?
A He placed [the] markings on it, sir.
Q So, you did not do anything on the shabu you bought from the accused when it was
the investigator who made the markings on the shabu?
A Yes, sir.
Q And what were the markings placed by the investigator, PO3 Dalagdagan, when you
turned over the shabu, subject matter of the buy bust operation?
A He placed "TMA"... that's all I can recall, sir.
Q Now, would you be able to identify that plastic sachet, subject matter of the buy-
bust operation?
A Yes, sir.
Q Showing to you several pieces of evidence placed inside the brown envelope. Kindly
look at the same and pick from these several items that plastic sachet, subject matter of the
buy-bust operation?
A (Witness picked from the bunch of evidence the plastic sachet which already marked
as Exhibit "P" and he read [the] markings "TMAU1-23APR05".)
Q Now, you also stated a while ago that you were the one who personally recovered the
buy-bust money used in the operation from the possession of the accused, Teng Moner. If the
same would be shown to you, would you be able to identity it?
A Yes, sir.
xxxx
Q Now, you also stated that the Request for Laboratory Examination was made by the
investigator, Now, who delivered the plastic sachet subject matter of the buy-bust
operation for laboratory examination?
A We did, sir.[14] (Emphases supplied.)
Judging from the cited testimony, it is apparent that the apprehending officers were
able to substantially comply with the requirements of the law regarding the custody of
confiscated or seized dangerous drugs. When cross-examined by the defense counsel
during trial about the reason behind the buy-bust team's noncompliance with standard
procedure, PO3 Tuldanes, one of the apprehending officers, gave the following
response:

ATTY. PALAD: (to witness)

Q Meaning you had no time to make the inventory right at the scene of the alleged buy-
bust?
A Yes, sir, because we were immediately instructed to pull out from the area.
Q Was there any threat on your lives that you immediately pulled out from the said
area?
A It was not our area – Area of Responsibility – so we just wanted to make sure, for
security and immediately left, sir.
Q So this fear for security, you did not follow this photographing/inventory?
A We did not do that anymore, sir, because our security was at risk. [15]

Verily, the circumstances that the buy-bust team proceeded first to the Central Police
District (CPD) Station, Camp Karingal in Quezon City and, from there, they were
accompanied by a police officer from the CPD to the target location, aside from proving
that it was a legitimate police operation, supported the existence of a security risk to
the buy-bust team. These additional precautions taken by the buy-bust team
underscored their unfamiliarity with the location of the operation and, in fact,
corroborated the above-quoted testimony that the buy-bust team believed there was a
threat to their security.

With regard to the accused's allegation that the buy-bust team failed to coordinate with
the PDEA before proceeding with the operation that nabbed Moner, both the trial court
and the Court of Appeals declare in unison that the requisite prior coordination with
PDEA did happen. Likewise, our own review did not provide any reason for us to
disbelieve said established fact.

To reiterate, noncompliance with the chain of custody rule is excusable as long as there
exist justifiable grounds which prevented those tasked to follow the same from strictly
conforming to the said directive. The preceding discussion clearly show that the
apprehending officers in this case did not totally disregard prescribed procedure but,
instead, demonstrated substantial compliance with what was required. It was likewise
explained that the divergence in procedure was not arbitrary or whimsical but because
the buy-bust team decided that they could not linger at the crime scene as it would
unduly expose them to security risks since they were outside their area of responsibility.

Notably, in the recent case of Palo v. People,[16] we affirmed a conviction for illegal
possession of dangerous drugs despite the fact that the seized illegal substance was only
marked at the police station and that there was no physical inventory or photograph of
the same:

The fact that the apprehending officer marked the plastic sachet at the police
station, and not at the place of seizure, did not compromise the integrity of the seized
item. Jurisprudence has declared that "marking upon immediate confiscation"
contemplates even marking done at the nearest police station or office of the
apprehending team. Neither does the absence of a physical inventory nor the lack of
photograph of the confiscated item renders the same inadmissible. What is of utmost
importance is the preservation of the integrity and evidentiary value of the seized items
as these would be used in determining the guilt or innocence of the accused. [17]

With regard to the third breach of procedure highlighted by Moner, this Court
cites People v. Usman[18] wherein we declared that the chain of custody is not
established solely by compliance with the prescribed physical inventory and
photographing of the seized drugs in the presence of the enumerated persons by law. In
that case, the police officers who arrested and processed the accused did not perform
the prescribed taking of photographs tinder the law but, nevertheless, the assailed
conviction was upheld. The Court reasoned thus:

[T]his Court has, in many cases, held that while the chain of custody should
ideally be perfect, in reality it is not, "as it is almost always impossible to obtain an
unbroken chain." The most important factor is the preservation of the integrity and the
evidentiary value of the seized items as they will be used to determine the guilt or
innocence of the accused. x x x.[19]

In the case at bar, the records indicate that the integrity and the evidentiary value of the
seized items had been preserved despite the procedural infirmities that accompanied
the process. On this score, we quote with approval the disquisition of the Court of
Appeals:
 The record shows that upon the arrest of accused-appellant, the shabu and
marked money were confiscated from him by PO2 Panopio. Accused-appellant was
immediately brought to the Las Piñas Police Station where the items confiscated from
him were turned-over by PO2 Panopio to PO3 Dalagdagan, the investigator-on-case. The
latter received the confiscated items and marked them in the presence of PO2
Panopio and accused-appellant. An inventory of the confiscated items was also made.

Thereafter, the request for laboratory examination was prepared by PO3 Dalagdagan
and signed by P/C Insp. Jonathan A. Cabal. The specimen together with the request was
brought to the PNP Crime Laboratory, Camp Crame, Quezon City by PO2 Panopio and
the other police officers. There, it was received by PSI Michael S. Holada, who delivered
the specimen and request for laboratory test to the forensic chemist PIS Maridel C.
Rodis. After examination, the specimen submitted for testing proved positive for
Methylamphetamine Hydrochloride, a dangerous drug. The result of the test was
reduced to writing and signed by the forensic chemist. It was duly noted by P/Sr. Supt.
Ricardo Cacholaver. It is worth stressing that the prosecution and defense had agreed to
dispense with the testimony of the forensic chemist and stipulated among others that
she could identify the documents and the specimens she examined. [20] (Emphases
supplied and citations omitted.)

Anent Moner's allegation that the buy-bust team asked money from him and his former
co-accused in exchange for their liberty, it must be emphasized that the said allegation
only came to light when defense counsel asked appellant what happened when he and
his former co-accused were brought to the Las Piñas Police Station. [21] Curiously,
however, defense counsel did not confront any of the prosecution witnesses regarding
the said accusation. More importantly, based on the record, no criminal or
administrative case relating thereto was ever filed by Moner or any of his former co-
accused against their alleged extortionists. Nevertheless, on this particular issue, we
would like to reiterate our ruling that the defense of denial or frame-up, like alibi, has
been invariably viewed by the courts with disfavor for it can just easily be concocted and
is a common and standard defense ploy in most prosecution for violation of the
Dangerous Drugs Act.[22]

At this juncture, it bears repeating that in cases involving violations of the Dangerous
Drugs Act, credence is given to prosecution witnesses who are police officers, for they
are presumed to have performed their duties in a regular manner, unless there is
evidence to the contrary.[23] Admittedly, the buy-bust team did not follow certain
aspects of procedure to the letter but this was excusable under the saving clause of the
chain of custody rule and prevailing jurisprudence. As a consequence thereof, their
arrest of Moner in the performance of their duty cannot be described as having been
done so irregularly as to convince this Court to invalidate the credibility and belief
bestowed by the trial court on the prosecution evidence. Accordingly, Moner must
provide clear and convincing evidence to overturn the aforesaid presumption that the
police officers regularly performed their duties but the records show that he has failed
to do so. Absent any proof of mishandling, tampering or switching of evidence
presented against him by the arresting officers and other authorities involved in the
chain of custody, the presumption remains.

This is not the first time that this Court has been confronted with the question of
whether or not to uphold the conviction of a person arrested for the illegal sale of
dangerous drugs who had been positively identified by credible witnesses as the
perpetrator of said crime but the manner by which the evidence of illegal drugs was
handled did not strictly comply with the chain of custody rule. To reiterate past
pronouncements, while ideally the procedure on the chain of custody should be perfect
and unbroken, in reality, it is not as it is almost always impossible to obtain an unbroken
chain.[24] Unfortunately, rigid obedience to procedure creates a scenario wherein the
safeguards that we set to shield the innocent are likewise exploited by the guilty to
escape rightful punishment. Realizing the inconvenient truth that no perfect chain of
custody can ever be achieved, this Court has consistently held that the most important
factor in the chain of custody rule is the preservation of the integrity and evidentiary
value of the seized items.[25]

We find it apropos to highlight this Court's discussion in Zalameda v. People,[26] which

was restated in the recent case of Saraum v. People[27]:

We would like to add that noncompliance with Section 21 of said law, particularly
the making of the inventory and the photographing of the drugs confiscated and/or
seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128
of the Rules of Court, evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules.  For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule, the evidence must
be admitted subject only to the evidentiary weight that will accorded it by the court x x
x.
We do not find any provision or statement in said law or in any rule that will bring about
the non-admissibility of the confiscated and/or seized drugs due to noncompliance with
Section 21 of Republic Act No. 9165. The issue therefore, if there is noncompliance with
said section, is not of admissibility, but of weight – evidentiary merit or probative value
– to be given the evidence. The weight to be given by the courts on said evidence
depends on the circumstances obtaining in each case.

Stated differently, if the evidence of illegal drugs was not handled precisely in the
manner prescribed by the chain of custody rule, the consequence relates not to
inadmissibility that would automatically destroy the prosecution's case but rather to the
weight of evidence presented for each particular case. In the case at bar, the trial court
judge convicted Moner on the strength of the credibility of the prosecution's witnesses
despite an imperfect chain of custody concerning the corpus delicti.

It should be noted that Section 21(a) of the IRR of Republic Act No. 9165 provides that:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall
take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:

(1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and confiscation, conduct a
physical inventory of the seized items and photograph the same in the presence of the
accused or the persons from whom such items were confiscated and/or seized, or
his/her representative or counsel, with an elected public official and a representative of
the National Prosecution Service or the media who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at
the nearest police station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures and
custody over said items. (Emphases supplied.)

The above-quoted provision recognizes that the credibility of the prosecution's

witnesses and the admissibility of other evidence are well within the power of trial court
judges to decide. Paragraph (5), Section 5, Article VIII of the 1987 Constitution vests
upon the Supreme Court the following power, among others:

(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such
rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court.

Jurisprudence explains the above-quoted constitutional provision in the following

manner:

Until the 1987 Constitution took effect, our two previous constitutions
textualized a power sharing scheme between the legislature and this Court in the
enactment of judicial rules. Thus, both the 1935 and the 1973 Constitutions vested on
the Supreme Court the "power to promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the practice of law." However, these
constitutions also granted to the legislature the concurrent power to "repeal, alter or
supplement" such rules.

The 1987 Constitution textually altered the power-sharing scheme under the previous
charters by deleting in Section 5(5) of Article VIII Congress' subsidiary and corrective
power. This glaring and fundamental omission led the Court to observe in Echegaray
v. Secretary of Justice  that this Court's power to promulgate judicial rules "is no longer
shared by this Court with Congress."[28]

The power to promulgate rules concerning pleading, practice and procedure in all courts
is a traditional power of this Court.[29] This includes the power to promulgate the rules of
evidence.

On the other hand, the Rules of Evidence are provided in the Rules of Court issued by
the Supreme Court. However, the chain of custody rule is not found in the Rules of
Court. Section 21 of Republic Act No. 9165 was passed by the legislative department and
its implementing rules were promulgated by PDEA, in consultation with the Department
of Justice (DOJ) and other agencies under and within the executive department.

In the United States, the chain of custody rule is followed by the federal courts using the
provisions of the Federal Rules of Evidence. The Federal Court of Appeals applied this
rule in United States v. Ricco[30] and held as follows:

The "chain of custody" rule is found in Fed.R.Evid. 901, which requires that the
admission of an exhibit must be preceded by "evidence sufficient to support a finding
that the matter in question is what its proponent claims." x x x.

x x x As we have pointed out, the "'chain of custody' is not an iron-clad requirement,

and the fact of a 'missing link' does not prevent the admission of real evidence, so long
as there is sufficient proof that the evidence is what it purports to be and has not been
altered in any material respect." x x x.

According to Cornell University's online legal encyclopedia, "[r]ules of evidence are, as

the name indicates, the rules by which a court determines what evidence is admissible
at trial. In the U.S., federal courts follow the Federal Rules of Evidence, while state
courts generally follow their own rules."[31] In the U.S. State of Alaska, for example, the
"chain of custody" rule is found in Alaska Evidence Rule 901(a). [32]

Evidence is defined in Section 1 of Rule 128[33] as "the means, sanctioned by these rules,
of ascertaining in a judicial proceeding the truth respecting a matter of fact." Section 2
of the same Rule provides that "[t]he rules of evidence shall be the same in all courts
and in all trials and hearings, except as otherwise provided by law or these rules."
Furthermore, the said Rule provides for the admissibility of evidence, and states that
"[e]vidence is admissible when it is relevant to the issue and is not excluded by the law
or these rules." The Rules of Admissibility provide that "[o]bjects as evidence are those
addressed to the senses of the court. When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the court."[34]
Under the doctrine of separation of powers, it is important to distinguish if a matter is a
proper subject of the rules of evidence, which as shown above are promulgated by the
Court, or it is a subject of substantive law, and should be passed by an act of Congress.
The Court discussed this distinction in the early case of Bustos v. Lucero[35]:

Substantive law creates substantive rights and the two terms in this respect may
be said to be synonymous. Substantive rights is a term which includes those rights which
one enjoys under the legal system prior to the disturbance of normal relations. (60 C. J.,
980.) Substantive law is that part of the law which creates, defines and regulates rights,
or which regulates the rights and duties which give rise to a cause of action; that part of
the law which courts are established to administer; as opposed to adjective or remedial
law, which prescribes the method of enforcing rights or obtains redress for their
invasion. (36 C. J., 27; 52 C. J. S., 1026.)

As applied to criminal law, substantive law is that which declares what acts are crimes
and prescribes the punishment for committing them, as distinguished from the
procedural law which provides or regulates the steps by which one who commits a
crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and
essentially remedial; it is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence — which is "the
mode and manner of proving the competent facts and circumstances on which a party
relies to establish the fact in dispute in judicial proceedings" — is identified with and
forms part of the method by which, in private law, rights are enforced and redress
obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers
to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The
entire rules of evidence have been incorporated into the Rules of Court. We can not tear
down section 11 of Rule 108 on constitutional grounds without throwing out the whole
code of evidence embodied in these Rules.

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court
said:

"Expressions are to be found in earlier judicial opinions to the effect that the
constitutional limitation may be transgressed by alterations in the rules of evidence or
procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. 
Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228,
232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep., 443. And there may be procedural changes
which operate to deny to the accused a defense available under the laws in force at the
time of the commission of his offense, or which otherwise affect him in such a harsh and
arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107
U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L.
ed., 1061, 18

Sup. Ct. Rep., 620. But it is now well settled that statutory changes in the mode of trial
or the rules of evidence, which do not deprive the accused of a defense and which
operate only in a limited and unsubstantial manner to his disadvantage, are not
prohibited. A statute which, after indictment, enlarges the class of persons who may be
witnesses at the trial, by removing the disqualification of persons convicted of felony, is
not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep.,
202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the
indictment so as to render admissible against the accused evidence previously held
inadmissible, Thompson vs.  Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep.,
922; or which changes the place of trial, Gut vs.  Minnesota, 9 Wall. 35, 19 L. ed., 573; or
which abolishes a court for hearing criminal appeals, creating a new one in its stead. See
Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570."
xxxx

The distinction between "remedy" and "substantive right" is incapable of exact

definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F.,
467; Beazell vs. Ohio, supra.)  It is difficult to draw a line in any particular case beyond
which legislative power over remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix that boundary by general
condition. (State vs.  Pavelick, 279 P., 1102.) This being so, it is inevitable that the
Supreme Court in making rules should step on substantive rights, and the Constitution
must be presumed to tolerate if not to expect such incursion as does not affect the
accused in a harsh and arbitrary manner or deprive him of a defense, but operates only
in a limited and unsubstantial manner to his disadvantage. For the Court's power is not
merely to compile, revise or codify the rules of procedure existing at the time of the
Constitution's approval. This power is "to promulgate rules concerning pleading,
practice, and procedure in all courts," which is a power to adopt a general, complete
and comprehensive system of procedure, adding new and different rules without regard
to their source and discarding old ones.
To emphasize, the distinction in criminal law is this: substantive law is that which
declares what acts are crimes and prescribes the punishment for committing them, as
distinguished from the procedural law which provides or regulates the steps by which
one who commits a crime is to be punished. [36]

Based on the above, it may be gleaned that the chain of custody rule is a matter of
evidence and a rule of procedure. It is therefore the Court who has the last say
regarding the appreciation of evidence. Relevant portions of decisions elucidating on
the chain of custody rule are quoted below:

Saraum v. People[37]:

The chain of custody rule requires the identification of the persons who handled the
confiscated items for the purpose of duly monitoring the authorized movements of
the illegal drugs and/or drug paraphernalia from the time they were seized from the
accused until the time they are presented in court. x x x. (Citation omitted.)

Mallillin v. People[38]:

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental
act of possession of a prohibited substance be established with moral certainty,
together with the fact that the same is not authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its existence is vital to a
judgment of conviction. Essential therefore in these cases is that the identity of the
prohibited drug be established beyond doubt. Be that as it may, the mere fact of
unauthorized possession will not suffice to create in a reasonable mind the moral
certainty required to sustain a finding of guilt. More than just the fact of possession, the
fact that the substance illegally possessed in the first place is the same substance
offered in court as exhibit must also be established with the same unwavering
exactitude as that requisite to make a finding of guilt. The chain of custody requirement
performs this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed.

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was picked up to the
time it is offered into evidence, in such a way that every person who touched the exhibit
would describe how and from whom it was received, where it was and what happened
to it while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would
then describe the precautions taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in the chain to have
possession of the same. (Citations omitted.)

These are matters well within the powers of courts to appreciate and rule upon, and so,
when the courts find appropriate, substantial compliance with the chain of custody rule
as long as the integrity and evidentiary value of the seized items have been preserved
may warrant the conviction of the accused. This is the rationale, grounded on the
constitutional power of the Court, to pass upon the credibility and admissibility of
evidence that underlies the proviso in Section 21(a) of the IRR of Republic Act No. 9165.

To conclude, this Court has consistently espoused the time-honored doctrine that where
the issue is one of credibility of witnesses, the findings of the trial court are not to be
disturbed unless the consideration of certain facts of substance and value, which have
been plainly overlooked, might affect the result of the case. [39] We do not believe that
the explainable  deviations to the chain of custody rule demonstrated by the police
officers involved in this case are reason enough to overturn the findings of the trial court
judge, who personally observed and weighed the testimony of the witnesses during trial
and examined the evidence submitted by both parties.

In light of the foregoing, we are compelled to dismiss the present appeal and affirm the
conviction of Moner for the crime of illegal sale of dangerous drugs.

WHEREFORE, premises considered, the present appeal is DISMISSED for lack of merit.

The assailed Decision dated July 27, 2011 of the Court of Appeals in CA-G.R. CR-H.C. No.
04399 is AFFIRMED.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 196510, September 12, 2018 ]
 SOFIA TABUADA, NOVEE YAP, MA. LORETA NADAL, AND GLADYS
EVIDENTE, PETITIONERS, V. ELEANOR TABUADA, JULIETA
TRABUCO, LAURETA REDONDO, AND SPS. BERNAN CERTEZA &
ELEANOR D. CERTEZA, RESPONDENTS.

DECISION

BERSAMIN, J.:

Competent proof of a legal relationship is not limited to documentary evidence. Object

and testimonial evidence may be admitted for the same purpose. Indeed, the relationship
may be established by all the relevant facts and circumstances that constitute a
preponderance of evidence.

A person constituting a mortgage should be the owner of the property, or should have the
right of free disposal of it, or, in the absence of the right of free disposal, such person
should be legally authorized for the purpose. Otherwise, the mortgage is null and void.

The Case

This appeal seeks to undo the decision promulgated on September 30, 2009, [1] whereby
the Court of Appeals (CA) reversed and set aside the judgment rendered in favor of the
petitioners in Civil Case No. 05-2842 on January 18, 2006 by the Regional Trial Court
(RTC), Branch 28, in Iloilo City; and dismissed the complaint in Civil Case No. 05-2842,
an action commenced to declare the nullity of a mortgage and damages.[2]

Antecedents

On January 27, 2005, the petitioners commenced Civil Case No. 05- 28420 in the RTC
against respondents Spouses Bernan and Eleanor Certeza (Spouses Certeza), Eleanor
Tabuada, Julieta Trabuco and Laureta Redondo. The complainant included a prayer for a
temporary restraining order (TRO) and for the issuance of the writ of preliminary
injunction.[3]

Summons and the copy of the complaint and its annexes, along with the notice of raffle,
were served by personal and substituted service on the respondents on January 31, 2005
at their respective stated addresses. According to the returns of service, respondent
Eleanor Tabuada personally received the summons and notice of raffle but refused to
acknowledge receipt thereof; Redondo received her summons through her husband,
Emilio, who also refused to acknowledge receipt thereof; Trabuco was served with
summons through her neighbor Grace Miguel, who also did not acknowledge receipt; and
the Spouses Certeza received their summons personally and acknowledged receipt
thereof.[4]

For failure of the respondents to file their answers within the reglementary period, the
petitioners filed a Motion to Declare Defendants in Default and for Judgment Based on
Complaint on February 28, 2005.[5]

On March 3, 2005, the Spouses Certeza wrote the Presiding Judge of the RTC to manifest
that they had been informed by their secretary who had attended in their behalf the
February 3, 2005 hearing of the application for the TRO that there was an on-going
negotiation for settlement between the petitioners and respondents Eleanor Tabuada,
Trabuco and Redondo; and that in view of the pendency of the Motion to Declare
Defendants in Default and for Judgment Based on Complaint, the Spouses Certeza were
thereby merely expressing the intention to file their answer.[6]

On March 21, 2005, Eleanor Tabuada, Trabuco and Redondo submitted their Motion to
Admit Answer (with their Answer with Counter-claim and Cross-claim attached). The
petitioners opposed the Motion to Admit Answer on March 29, 2005.[7]

On May 11, 2005, the RTC denied the Motion to Admit Answer, and declared Eleanor
Tabuada, Trabuco and Redondo in default. It likewise declared the Spouses Certeza in
default for failure to file their answer.[8]

On June 7, 2005, the respondents submitted their Motion to Set Aside Order of Default,
which the petitioners opposed on June 14, 2005.[9]

On June 30, 2005, the RTC denied the Motion to Set Aside Order of Default,[10] the
material portion of the order of denial stating:

Records show that defendants-spouses Certeza were served summons on January 31,
2005. They filed their answer on March 21, 2005 only AFTER plaintiffs have already
filed a motion to declare them in default. The belated filing of the answer could not be
countenanced by this Court considering that defendants were aware of the pendency of
this case as evidenced by the presence of their representative during the hearing on
February 3, 2005 on the incident for the issuance of a temporary restraining order. [11]

At the ex parte hearing held on September 9, 2005 to receive their evidence, the

petitioners presented Sofia Tabuada, who testified that her late husband was Simeon
Tabuada, the son of Loreta Tabuada and the brother-in law of defendant Eleanor
Tabuada; that her co-plaintiffs were her daughters; that defendant Julieta Trabuco was the
daughter of Eleanor Tabuada while Laureta Redondo was the latter's neighbor; that
Loreta Tabuada had died on April 16, 1990 while her husband had died on July 18, 1997;
that she received the notice sent by the Spouses Certeza regarding their land, known as
Lot 4272-B-2, located at Barangay Tacas, Jaro, Iloilo City that her husband had inherited
from his mother, Loreta Tabuada, and where they were residing, informing them that the
land had been mortgaged to them (Spouses Certeza); that she immediately inquired from
Eleanor Tabuada and Trabuco about the mortgage, and both admitted that they had
mortgaged the property to the Spouses Certeza; that she was puzzled to see the signature
purportedly of Loreta Tabuada on top of the name Loreta Tabuada printed on
the Mortgage of Real Rights dated July 1, 1994 and the Promissory Note dated July 4,
1994 despite Loreta Tabuada having died on April 16, 1990; that the property under
mortgage was the where she and her daughters were residing; that the notice caused her
to lose her appetite and sleepless nights, and she suffered hypertension, which entitled her
to moral damages of P100,000.00; that she engaged her counsel to pursue the case against
the defendants, paying counsel P40,000.00; and that she further incurred litigation
expenses of P5,000.00.[12]

The petitioners offered for admission the following exhibits, namely: (a) the death
certificate of Loreta Yulo Tabuada that indicated April 16, 1990 as the date of death; (b)
Transfer Certificate of Title (TCT) No. T-82868 of the Register of Deeds of Iloilo City
covering Lot No. 4272-B-2 situated in Jaro, Iloilo City and registered in the name of
Loreta Tabuada; (c) the Promissory Note dated July 4, 1994 for P68,000.00 executed by
Loreta Tabuada; (d) the Mortgage of Real Rights dated July 1, 1994 involving Lot No.
4272-B-2 under TCT No. T-82868 executed by Loreta Tabuada as the mortgagor; (e) the
list of payments of the principal obligation subject of the real estate mortgage and the
interests; and (f) the demand letter dated August 12, 2004 from the Spouses Certeza
addressed to Loreta Tabuada demanding the payment of the total obligation of P415,
452.94.[13]

Judgment of the RTC

On January 18, 2006, the RTC rendered judgment in favor of the petitioners, [14] decreeing
thusly:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs Sofia Tabuada,

Novee Yap, Ma. Loreta Nadal, and Gladys Evidente, and against defendants Eleanor
Tabuada, Julieta Trabuco, Laureta Redondo and Spouses Bernan and Eleanor Certeza.
The Mortgage of Real Rights dated July 1, 1994 and the Promissory Note dated July 4,
1994, are hereby declared null and void. Defendants are further ordered to pay plaintiffs,
jointly and severally, the following:

a. moral damages amounting to Php 50,000.00;

b. attorney's fees amounting to P10,000.00; and

c. costs of suit.
SO ORDERED.[15]

The RTC declared the Mortgage of Real Rights dated July 1, 1994 null and void for not
complying with the essential requisites of a real estate mortgage. It opined that based on
the complaint and the testimony of Sofia Tabuada "Eleanor Tabuada, who [was] not the
absolute owner of Lot No. 4272-B-2, and without having the legal authority to mortgage
said property [had] misrepresented herself as the deceased Loreta Tabuada and
mortgaged the property without the knowledge of herein plaintiffs, and benefited from
said mortgage to the detriment of the rights and interests of plaintiffs." [16] It ruled that
moral damages were proper under Article 309, of the Civil Code based on the showing of
disrespect to the dead.[17]

The respondents appealed.

Decision of the CA

On September 30, 2009, the CA promulgated its decision,[18] reversing and setting aside
the judgment of the RTC, and dismissing Civil Case No. 05-28420 instead,[19] ruling:

WHEREFORE, the instant appeal is GRANTED. The Decision dated January 18, 2006
of the Regional Trial Court, Branch 28, Iloilo City in Civil Case No. 05-2842 for
Declaration of Nullity of Mortgage and Damages with Prayer for Issuance of Preliminary
Injunction and Temporary Restraining Order is REVERSED and SET ASIDE.
Accordingly, the complaint docketed as Civil Case No. 05-2842 is hereby DISMISSED.

SO ORDERED.

The petitioners moved for reconsideration,[20] but the CA denied their motion for
reconsideration on March 7, 2011.[21]

Issues

Did the CA seriously err in reversing the RTC considering that there was ample evidence
competently establishing the relationship of plaintiff Sofia Tabuada to the late Loreta
Tabuada?

In addition, there is need to resolve whether or not the award of moral damages based on
disrespect to the dead was legally proper.

Ruling of the Court

We reverse the CA, and reinstate the judgment of the RTC, but we delete the award of
moral damages based on disrespect to the dead for being legally improper.
 1.
The legal relationship of Sofia Tabuada with
deceased Loreta Tabuada was established
by preponderance of evidence

The CA found merit in the contention that the petitioners were not able to prove by
preponderance of evidence that they were the legal heirs of the late Loreta Tabuada, the
registered holder of the title over the mortgaged real property. The CA noted that the
death certificate the petitioners presented was not an authenticated copy on security paper
issued by the National Statistics Office (now Philippine Statistics Authority); and that the
name of the deceased on the death certificate (Loreta Yulo Tabuada) did not match the
name of the registered title holder (Loreta H. Tabuada). It pointed out that the
"discrepancy is material as it puts in issue the real identity of the Loreta H. Tabuada who
the plaintiffs claim is their predecessor-in-interest and the person whose name appears in
the death certificate as Loreta Yulo Tabuada. Consequently this inconsistency puts in
doubt the plaintiffs-appellees' ownership over Lot No. 4272-B-2."[22]

The CA thereby underscored that the petitioners did not prove Sofia Tabuada's legal
relationship with the late Loreta Tabuada because she did not present documentary
evidence thereof.[23]

The CA grossly erred.

Under the Rules of Court, evidence – as the means of ascertaining in a judicial

proceeding the truth respecting a matter of fact[24] – may be object,[25] documentary,[26] and
testimonial.[27] It is required that evidence, to be admissible, must be relevant and
competent.[28] But the admissibility of evidence should not be confused with its probative
value. Admissibility refers to the question of whether certain pieces of evidence are to be
considered at all, while probative value refers to the question of whether the admitted
evidence proves an issue. Thus, a particular item of evidence may be admissible, but its
evidentiary weight depends on judicial evaluation within the guidelines provided by the
rules of evidence.[29]

Although documentary evidence may be preferable as proof of a legal relationship, other

evidence of the relationship that are competent and relevant may not be excluded. The
preponderance of evidence, the rule that is applicable in civil cases, is also known as the
greater weight of evidence. There is a preponderance of evidence when the trier of facts
is led to find that the existence of the contested fact is more probable than its
nonexistence.[30] In short, the rule requires the consideration of all the facts and
circumstances of the cases, regardless of whether they are object, documentary, or
testimonial.[31]
The mere discrepancy – as perceived by the CA – between the name of the deceased
entered in the death certificate (Loreta Yulo Tabuada) and the name of the titleholder
(Loreta H. Tabuada) did not necessarily belie or disprove the legal relationship between
Sofia Tabuada and the late Loreta Tabuada. To establish filiation, the courts like the RTC
herein should consider and analyze not only the relevant testimonies of witnesses who are
competent but other relevant evidence as well. [32] There was on record herein Sofia
Tabuada's unchallenged declaration of her being the daughter-in-law of the registered
titleholder.[33] Also on record was the petitioners' being in the actual possession of Lot
No. 4272-B-2, which they had been using as the site for their family residence. [34] Such
established circumstances indicated that the deceased Loreta Yulo Tabuada and
titleholder Loreta H. Tabuada could only be one and the same person. Moreover, even the
Spouses Certeza were aware that respondents Eleanor Tabuada and Tabuco were the
relatives of Sofia Tabuada; and that the respective families of Eleanor Tabuada, Tabuco
and Sofia Tabuada actually resided on the same lot. [35] Verily, the facts and circumstances
sufficiently and competently affirmed the legal relationship between Sofia Tabuada and
the late titleholder Loreta H. Tabuada.

2.
Real estate mortgage was null and void

Under Article 2085 of the Civil Code, a mortgage, to be valid, must have the following
requisites, namely: (a) that it be constituted to secure the fulfillment of a principal
obligation; (b) that the mortgagor be the absolute owner of the thing mortgaged; and (c)
that the person constituting the mortgage has free disposal of the property, and in the
absence of the right of free disposal, that the person be legally authorized for the purpose.
[36]

It is uncontested that the late Loreta Tabuada had died in 1990, or four years before the
mortgage was constituted; and that Eleanor Tabuada and Trabuco admitted to petitioner
Sofia Tabuada that they had mortgaged the property to the Spouses Certezas.
Accordingly, the RTC was fully justified in declaring the nullity of the mortgage based
on its finding that Eleanor Tabuada had fraudulently represented herself to the Spouses
Certeza as the late Loreta Tabuada, the titleholder. [37] That the titleholder had been dead
when the mortgage was constituted on the property by Eleanor Tabuada was not even
contested by Eleanor Tabuada and Tabuco. In any event, Eleanor Tabuada had not been
legally authorized to mortgage the lot to the Spouses Certeza.

3.
Respondents Spouses Certeza
were not mortgagees in good faith

The Spouses Certeza contend that they were mortgagees in good faith considering that
they had no notice prior to the filing of Civil Case No. 05- 28420 that the real owner of
the property had died several years before the execution of the mortgage; and that they
had believed in good faith in the representations made by Eleanor Tabuada that she had
been Loreta Tabuada, the titleholder.[38]

The contentions of the Spouses Certeza lack persuasion.

The Spouses Certeza admitted that the petitioners were the relatives by blood or affinity
of their co-defendants Eleanor Tabuada, et al.;[39] and that Sofia Tabuada, et al. and the
petitioners had been living in their respective residences built on the property subject of
the mortgage.[40] Such admissions belied the Spouses Certeza's contention of being
mortgagees in good faith. At the very least, they should have been prudent and cautious
enough as to have inquired about Eleanor Tabuada's assertion of her capacity and
authority to mortgage in view of the actual presence of other persons like the petitioners
herein on the property. Such prudence and caution were demanded of persons like them
who are about to deal with realty; they should not close their eyes to facts that should put
a reasonable man on his guard and still claim he acted in good faith. [41] Indeed, the status
of a mortgagee in good faith does not apply where the title is still in the name of the
rightful owner and the mortgagor is a different person pretending to be the owner. In such
a case, the mortgagee is not an innocent mortgagee for value and the registered owner
will generally not lose his title.[42]

4.
Award of moral damages reversed because
action was not an instance of disrespect to the dead

The RTC awarded moral damages to the petitioners based on disrespect to the dead on
the part of Eleanor Tabuada for fraudulently signing and executing the mortgage by
impersonating the late Loreta Tabuada.

We hold that the RTC thereby fell into a legal error that the Court should correct. The
petitioners cannot recover moral damages from Eleanor Tabuada on the ground of
"disrespect to the dead."[43] The Civil Code provision under Article 309[44] on showing
"disrespect to the dead" as a ground for the family of the deceased to recover moral and
material damages, being under the title of Funerals, obviously envisions the commission
of the disrespect during the period of mourning over the demise of the deceased or on the
occasion of the funeral of the mortal remains of the deceased. Neither was true herein.
Hence, the act of Eleanor Tabuada of fraudulently representing the late Loreta Tabuada
did not amount to disrespect to the dead as basis for the recovery of moral damages.

WHEREFORE, the Court GRANTS the petition for review

on certiorari; REVERSES and SETS ASIDE the decision promulgated on September
30, 2009; REINSTATES the judgment rendered on January 18, 2006 by the Regional
Trial Court, Branch 28, in Iloilo City in Civil Case No. 05-28420 subject to the deletion
of the award of moral damages; and ORDERS the respondents to pay the costs of suit.

SO ORDERED.

FIRST DIVISION
[ G.R. NO. 148220, June 15, 2005 ]
ROSENDO HERRERA, PETITIONER, VS. ROSENDO ALBA, MINOR,
REPRESENTED BY HIS MOTHER ARMI A. ALBA, AND HON. NIMFA
CUESTA-VILCHES, PRESIDING JUDGE, BRANCH 48, REGIONAL TRIAL
COURT, MANILA, RESPONDENTS.

DECISION

CARPIO, J.:

The Case

This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the
Court of Appeals (“appellate court”) in CA-G.R. SP No. 59766. The appellate court
affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (“trial
court”) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera
(“petitioner”) to submit to deoxyribonucleic acid (“DNA”) paternity testing, while the
Order dated 8 June 2000 denied petitioner’s motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba (“respondent”), represented by his

mother Armi Alba, filed before the trial court a petition for compulsory recognition,
support and damages against petitioner. On 7 August 1998, petitioner filed his answer
with counterclaim where he denied that he is the biological father of respondent.
Petitioner also denied physical contact with respondent’s mother.

Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the
proceedings. To support the motion, respondent presented the testimony of Saturnina C.
Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle
University where she taught Cell Biology. She was also head of the University of the
Philippines Natural Sciences Research Institute (“UP-NSRI”), a DNA analysis
laboratory. She was a former professor at the University of the Philippines in Diliman,
Quezon City, where she developed the Molecular Biology Program and taught Molecular
Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and
asserted that the test had an accuracy rate of 99.9999% in establishing paternity. [4]

Petitioner opposed DNA paternity testing and contended that it has not gained
acceptability. Petitioner further argued that DNA paternity testing violates his right
against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondent’s motion to conduct
DNA paternity testing on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant
individuals, namely: the petitioner, the minor child, and respondent are directed to
undergo DNA paternity testing in a laboratory of their common choice within a period
of thirty (30) days from receipt of the Order, and to submit the results thereof within a
period of ninety (90) days from completion. The parties are further reminded of the
hearing set on 24 February 2000 for the reception of other evidence in support of the
petition.

IT IS SO ORDERED.[5] (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted
that “under the present circumstances, the DNA test [he] is compelled to take would be
inconclusive, irrelevant and the coercive process to obtain the requisite specimen…,
unconstitutional.”

In an Order dated 8 June 2000, the trial court denied petitioner’s motion for
reconsideration.[6]

On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under
Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the
Orders dated 3 February 2000 and 8 June 2000 “in excess of, or without jurisdiction
and/or with grave abuse of discretion amounting to lack or excess of jurisdiction.”
Petitioner further contended that there is “no appeal nor any [other] plain, adequate and
speedy remedy in the ordinary course of law.” Petitioner maintained his previous
objections to the taking of DNA paternity testing. He submitted the following grounds to
support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court of
Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the
limitations on, and conditions precedent for the admissibility of DNA
 testing and ignoring the serious constraints affecting the reliability of the
test as admitted by private respondent’s “expert” witness.
3. Subject Orders lack legal and factual support, with public respondent
relying on scientific findings and conclusions unfit for judicial notice and
unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled
to take will be inconclusive, irrelevant and the coercive process to obtain
the requisite specimen from the petitioner, unconstitutional.[7]

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition and
affirming the questioned Orders of the trial court. The appellate court stated that
petitioner merely desires to correct the trial court’s evaluation of evidence. Thus, appeal
is an available remedy for an error of judgment that the court may commit in the exercise
of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing
does not violate his right against self-incrimination because the right applies only to
testimonial compulsion. Finally, the appellate court pointed out that petitioner can still
refute a possible adverse result of the DNA paternity testing. The dispositive portion of
the appellate court’s decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE
COURSE, and ordered dismissed, and the challenged orders of the Trial
Court AFFIRMED, with costs to Petitioner.

SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its Resolution
dated 23 May 2001.[9]

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in this
jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA
technology may be integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.[10]

Petitioner further submits that the appellate court gravely abused its discretion when it
authorized the trial court “to embark in [sic] a new procedure xxx to determine filiation
despite the absence of legislation to ensure its reliability and integrity, want of official
recognition as made clear in Lim vs. Court of Appeals and the presence of technical and
legal constraints in respect of [sic] its implementation.”[11] Petitioner maintains that the
proposed DNA paternity testing violates his right against self-incrimination.[12]

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to give an
overview of a paternity suit and apply it to the facts of this case. We shall consider the
requirements of the Family Code and of the Rules of Evidence to establish paternity and
filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a
legal right associated with paternity, such as citizenship,[13] support (as in the present
case), or inheritance. The burden of proving paternity is on the person who alleges that
the putative father is the biological father of the child. There are four significant
procedural aspects of a traditional paternity action which parties have to face: a prima
facie case, affirmative defenses, presumption of legitimacy, and physical resemblance
between the putative father and child.[14]

A prima facie case exists if a woman declares that she had sexual relations with the
putative father. In our jurisdiction, corroborative proof is required to carry the burden
forward and shift it to the putative father.[15]

There are two affirmative defenses available to the putative father. The putative father
may show incapability of sexual relations with the mother, because of either physical
absence or impotency.[16] The putative father may also show that the mother had sexual
relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate. [17] The
child’s legitimacy may be impugned only under the strict standards provided by law.[18]

Finally, physical resemblance between the putative father and child may be offered as
part of evidence of paternity. Resemblance is a trial technique unique to a paternity
proceeding. However, although likeness is a function of heredity, there is no
mathematical formula that could quantify how much a child must or must not look like
his biological father.[19] This kind of evidence appeals to the emotions of the trier of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondent’s mother, put forward a prima facie case when she asserted that petitioner is
respondent’s biological father. Aware that her assertion is not enough to convince the
trial court, she offered corroborative proof in the form of letters and pictures. Petitioner,
on the other hand, denied Armi Alba’s assertion. He denied ever having sexual relations
with Armi Alba and stated that respondent is Armi Alba’s child with another man. Armi
Alba countered petitioner’s denial by submitting pictures of respondent and petitioner
side by side, to show how much they resemble each other.

Paternity and filiation disputes can easily become credibility contests. We now look to
the law, rules, and governing jurisprudence to help us determine what evidence of
incriminating acts on paternity and filiation are allowed in this jurisdiction.

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same evidence as legitimate children.

xxx

ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:
SEC. 39. Act or declaration about pedigree.—The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related to him
by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence other
than such act or declaration. The word “pedigree” includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree.—The reputation or tradition

existing in a family previous to the controversy, in respect to the pedigree of any one of
its members, may be received in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engraving on rings, family portraits and the like, may be
received as evidence of pedigree.
This Court’s rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA,[20] a case petitioner often cites, we stated that the
issue of paternity still has to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative father.  Under Article 278
of the New Civil Code, voluntary recognition by a parent shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic writing. To be
effective, the claim of filiation must be made by the putative father himself and the
writing must be the writing of the putative father.[21] A notarial agreement to support a
child whose filiation is admitted by the putative father was considered acceptable
evidence.[22] Letters to the mother vowing to be a good father to the child and pictures of
the putative father cuddling the child on various occasions, together with the certificate of
live birth, proved filiation.[23] However, a student permanent record, a written consent to a
father’s operation, or a marriage contract where the putative father gave consent, cannot
be taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor
family pictures[26] are sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and
filiation to incriminating acts alone. However, advances in science show that sources of
evidence of paternity and filiation need not be limited to incriminating acts. There is now
almost universal scientific agreement that blood grouping tests are conclusive on non-
paternity, although inconclusive on paternity.[27]

In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that the
putative father was a “possible father” of the child. Paternity was imputed to the putative
father after the possibility of paternity was proven on presentation during trial of facts
and circumstances other than the results of the blood grouping test.

In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed to
submit themselves to a blood grouping test. The National Bureau of Investigation
(“NBI”) conducted the test, which indicated that the child could not have been the
possible offspring of the mother and the putative father. We held that the result of the
blood grouping test was conclusive on the non-paternity of the putative father.

The present case asks us to go one step further. We are now asked whether DNA analysis
may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a person’s entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic identity
is unique. Hence, a person’s DNA profile can determine his identity.[30]

DNA analysis is a procedure in which DNA extracted from a biological sample obtained
from an individual is examined. The DNA is processed to generate a pattern, or a DNA
profile, for the individual from whom the sample is taken. This DNA profile is unique for
each person, except for identical twins.[31] We quote relevant portions of the trial court’s 3
February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic
acid). It is exclusive to an individual (except in the rare occurrence of identical twins that
share a single, fertilized egg), and DNA is unchanging throughout life. Being a
component of every cell in the human body, the DNA of an individual’s blood is the very
DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs,
saliva, or other body parts.

The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four
bases appear in an individual’s DNA determines his or her physical makeup. And since
DNA is a double-stranded molecule, it is composed of two specific paired bases, A-
T or T-A and G-C or C-G. These are called “genes.”

Every gene has a certain number of the above base pairs distributed in a particular

sequence. This gives a person his or her genetic code. Somewhere in the DNA
framework, nonetheless, are sections that differ. They are known as “polymorphic
loci,” which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or
analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing
simply means determining the “polymorphic loci.”

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular
biologist may proceed to analyze it in several ways. There are five (5) techniques to
conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism);
“reverse dot blot” or HLA DQ a/Pm loci which was used in 287 cases that were admitted
as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR
(variable number tandem repeats); and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short tandem repeats) method which, as of
1996, was availed of by most forensic laboratories in the world. PCR is the process of
replicating or copying DNA in an evidence sample a million times through repeated
cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other
hand, takes measurements in 13 separate places and can match two (2) samples with a
reported theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, “matches” are determined. To illustrate,

when DNA or fingerprint tests are done to identify a suspect in a criminal case, the
evidence collected from the crime scene is compared with the “known” print. If a
substantial amount of the identifying features are the same, the DNA or fingerprint is
deemed to be a match. But then, even if only one feature of the DNA or fingerprint
is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each
of these regions, a person possesses two genetic types called “allele”, one inherited from
each parent. In [a] paternity test, the forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Comparing next the DNA profiles of
the mother and child, it is possible to determine which half of the child’s DNA was
inherited from the mother. The other half must have been inherited from the biological
father. The alleged father’s profile is then examined to ascertain whether he has the DNA
types in his profile, which match the paternal types in the child. If the man’s DNA types
do not match that of the child, the man is excluded as the father. If the DNA types match,
then he is not excluded as the father.[32] (Emphasis in the original)
Although the term “DNA testing” was mentioned in the 1995 case of People v.
Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of Appeals[34] that more
than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas
corpus against respondent who abducted petitioners’ youngest son. Testimonial and
documentary evidence and physical resemblance were used to establish parentage.
However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the modern
and scientific ways available. Fortunately, we have now the facility and expertise in using
DNA test for identification and parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it
was said, that courts should apply the results of science when completely obtained in aid
of situations presented, since to reject said result is to deny progress. Though it is not
necessary in this case to resort to DNA testing, in [the] future it would be useful to all
concerned in the prompt resolution of parentage and identity issues.
Admissibility of
DNA Analysis as Evidence

The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This may be
considered a 180 degree turn from the Court’s wary attitude towards DNA testing in the
1997 Pe Lim case,[36] where we stated that “DNA, being a relatively new science, xxx has
not yet been accorded official recognition by our courts.” In Vallejo, the DNA profile
from the vaginal swabs taken from the rape victim matched the accused’s DNA profile.
We affirmed the accused’s conviction of rape with homicide and sentenced him to death.
We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider,
among other things, the following data: how the samples were collected, how they were
handled, the possibility of contamination of the samples, the procedure followed in
analyzing the samples, whether the proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted the tests. [37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002,
there was no longer any question on the validity of the use of DNA analysis as evidence.
The Court moved from the issue of according “official recognition” to DNA analysis as
evidence to the issue of observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on
DNA testing: People v. Yatar[38] and In re: The Writ of Habeas Corpus for Reynaldo de
Villa.[39] In Yatar, a match existed between the DNA profile of the semen found in the
victim and the DNA profile of the blood sample given by appellant in open court. The
Court, following Vallejo’s footsteps, affirmed the conviction of appellant because the
physical evidence, corroborated by circumstantial evidence, showed appellant guilty of
rape with homicide. In De Villa, the convict-petitioner presented DNA test results to
prove that he is not the father of the child conceived at the time of commission of the
rape. The Court ruled that a difference between the DNA profile of the convict-petitioner
and the DNA profile of the victim’s child does not preclude the convict-petitioner’s
commission of rape.

In the present case, the various pleadings filed by petitioner and respondent refer to two
United States cases to support their respective positions on the admissibility of DNA
analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow Pharmaceuticals.[41] In
Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the
Supreme Court of the District of Columbia. During trial, Frye’s counsel offered an expert
witness to testify on the result of a systolic blood pressure deception test[42] made on
defendant. The state Supreme Court affirmed Frye’s conviction and ruled that “the
systolic blood pressure deception test has not yet gained such standing and scientific
recognition among physiological and psychological authorities as would justify the courts
in admitting expert testimony deduced from the discovery, development, and experiments
thus far made.” The Frye standard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the experimental
and demonstrable stages is difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and while courts will go a long way
in admitting expert testimony deduced from a well recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently established to
have gained general acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with
stabbing and murder. Bloodstained articles and blood samples of the accused and the
victim were submitted for DNA testing to a government facility and a private facility.
The prosecution introduced the private testing facility’s results over Schwartz’s
objection. One of the issues brought before the state Supreme Court included the
admissibility of DNA test results in a criminal proceeding. The state Supreme Court
concluded that:
While we agree with the trial court that forensic DNA typing has gained general
acceptance in the scientific community, we hold that admissibility of specific test results
in a particular case hinges on the laboratory’s compliance with appropriate standards and
controls, and the availability of their testing data and results.[44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and
appellate courts denied the admissibility of an expert’s testimony because it failed to
meet the Frye standard of “general acceptance.” The United States Supreme Court ruled
that in federal trials, the Federal Rules of Evidence have superseded the Frye standard.
Rule 401 defines relevant evidence, while Rule 402 provides the foundation for
admissibility of evidence. Thus:
Rule 401. “Relevant evidence” is defined as that which has any “tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not
relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not
mean that the Federal Rules do not place limits on the admissibility of scientific
evidence. Rather, the judge must ensure that the testimony’s reasoning or method is
scientifically valid and is relevant to the issue. Admissibility would depend on factors
such as (1) whether the theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known or
potential rate of error; (4) the existence and maintenance of standards controlling the
technique’s operation; and (5) whether the theory or technique is generally accepted in
the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified

the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now
reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases.
Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines.[47] At best, American jurisprudence merely has a persuasive
effect on our decisions. Here, evidence is admissible when it is relevant to the fact in
issue and is not otherwise excluded by statute or the Rules of Court. [48] Evidence is
relevant when it has such a relation to the fact in issue as to induce belief in its existence
or non-existence.[49] Section 49 of Rule 130, which governs the admissibility of expert
testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed “when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.” [50]

Indeed, it would have been convenient to merely refer petitioner to our decisions
in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In
our jurisdiction, the restrictive tests for admissibility established by Frye-
Schwartz and Daubert-Kumho go into the weight of the evidence.

Probative Value of
DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider,
among other things, the following data: how the samples were collected, how they were
handled, the possibility of contamination of the samples, the procedure followed in
analyzing the samples, whether the proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted the tests. [51]
We also repeat the trial court’s explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in
an individual to produce a DNA profile. Comparing next the DNA profiles of the mother
and child, it is possible to determine which half of the child’s DNA was inherited from
the mother. The other half must have been inherited from the biological father. The
alleged father’s profile is then examined to ascertain whether he has the DNA types in his
profile, which match the paternal types in the child. If the man’s DNA types do not match
that of the child, the man is excluded as the father. If the DNA types match, then he
is not excluded as the father.[52]
It is not enough to state that the child’s DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and the DNA profile of the
putative father does not necessarily establish paternity. For this reason, following the
highest standard adopted in an American jurisdiction,[53] trial courts should require at least
99.9% as a minimum value of the Probability of Paternity (“W”) prior to a paternity
inclusion. W is a numerical estimate for the likelihood of paternity of a putative father
compared to the probability of a random match of two unrelated individuals. An
appropriate reference population database, such as the Philippine population database, is
required to compute for W. Due to the probabilistic nature of paternity inclusions, W will
never equal to 100%. However, the accuracy of W estimates is higher when the putative
father, mother and child are subjected to DNA analysis compared to those conducted
between the putative father and child alone.[54]

DNA analysis that excludes the putative father from paternity should be conclusive proof
of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis
should be considered as corroborative evidence. If the value of W is 99.9% or higher,
then there is refutable presumption of paternity.[55] This refutable presumption of
paternity should be subjected to the Vallejo standards.

Right Against
Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that “no person shall be
compelled to be a witness against himself.” Petitioner asserts that obtaining samples from
him for DNA testing violates his right against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable only to testimonial evidence.
Again, we quote relevant portions of the trial court’s 3 February 2000 Order with
approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a
paternity case, contrary to the belief of respondent in this action, will not violate the right
against self-incrimination. This privilege applies only to evidence that is
“communicative” in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987).
The Supreme Court has ruled that the right against self-incrimination is just a prohibition
on the use of physical or moral compulsion to extort communication (testimonial
evidence) from a defendant, not an exclusion of evidence taken from his body when it
may be material. As such, a defendant can be required to submit to a test to extract virus
from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body
of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23
Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu
Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size
was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman
accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62),
since the gist of the privilege is the restriction on “testimonial compulsion.”[56]
The policy of the Family Code to liberalize the rule on the investigation of the paternity
and filiation of children, especially of illegitimate children, is without prejudice to the
right of the putative parent to claim his or her own defenses.[57] Where the evidence to aid
this investigation is obtainable through the facilities of modern science and technology,
such evidence should be considered subject to the limits established by the law, rules, and
jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of

Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial
Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.

SECOND DIVISION
[ G.R. No. 176527, October 09, 2009 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SAMSON
VILLASAN Y BANATI, ACCUSED-APPELLANT.

DECISION

BRION, J.:

We review in this appeal the May 25, 2006 decision of the Court of Appeals (CA)
in CA-G.R. CR H.C. No. 00250.[1] The appellate court affirmed the May 29, 2001 decision
of the Regional Trial Court (RTC), Branch 18, Cebu City,[2] that in turn found appellant
Samson Villasan (appellant) guilty beyond reasonable doubt of the crime of murder and
imposed on him the penalty of reclusion perpetua.

ANTECEDENT FACTS

The prosecution charged the appellant before the RTC with the crime of murder under
the following Information:[3]

That on or about the 1st day of June, 2000, at about 6:30 in the evening, in the
City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, armed with a .357 caliber Magnum revolver S&W (Homemade), with treachery
and evident premeditation, with deliberate intent, with intent to kill, did then and there
attack, assault and shot one Jacinto T. Bayron, hitting him on his [sic] vital parts of his
body, thereby inflicting upon him physical injuries, as a consequence of which said
Jacinto T. Bayron died instantaneously.

CONTRARY TO LAW.

The appellant pleaded not guilty to the charge upon arraignment. [4] The prosecution
presented the following witnesses in the trial on the merits that followed: Jose Secula
(Jose); Gaudioso Quilaton (Gaudioso); Sergio Bayron (Sergio); and Dr. Rene Enriquez
Cam (Dr. Cam). The appellant, Carlito Moalong (Carlito), and Police Senior Inspector
Mutchit Salinas (P/Sr. Insp. Salinas) took the witness stand for the defense.

Jose, a security guard of PROBE Security Agency, testified that he was outside his
employer's branch office at the Ayala Business Center, Siquijor Road, Cebu City at
around 6:15 p.m. of June 1, 2000, when he heard three successive gunshots. [5] He
mounted his motorcycle to go and investigate but before he could start it, he saw the
appellant "walking fast" and carrying a gun. He ordered the appellant to stop and to
drop his weapon. The latter obeyed and dropped his gun. He then approached the
appellant, conducted a body search on him,[6] and turned him over to his (Jose's)
supervisor who, in turn, contacted the police. The police forthwith brought the suspect
to the police station. Jose recalled that he executed an affidavit on the shooting incident
before the police.[7]

On cross examination, Jose clarified that he did not see the actual shooting; he only saw
the victim's lifeless body after the appellant had been arrested. [8] On re-direct, Jose
stated that before the appellant was brought to the police station, the latter told him
that he had shot a fellow driver.[9]

Gaudioso, a store assistant at Healthy Options, narrated that he boarded a jeep at the
waiting shed at the Ayala Business Center at around 6:30 p.m. of June 1, 2000. [10] He
occupied the jeep's front seat, beside the driver Jacinto Bayron (Bayron). While so
seated, he heard the appellant briefly converse with Bayron, requesting the latter to be
allowed to ride the jeep because his own jeep conked out. [11] Soon after the appellant
got into Bayron's jeep, Gaudioso heard a gunshot. He looked back and saw the appellant
shoot Bayron twice in the head.[12] Gaudioso immediately jumped off but later returned
to assist in bringing Bayron to the hospital.[13] It was then that he learned of Bayron's
name. Thereafter, the police invited him to the police station for his statement
regarding the shooting.[14]

On cross examination, Gaudioso recalled that there were three other passengers at that
time inside the jeep. He immediately turned his head towards the passenger's side
when he heard the first shot; two more shots followed. He got scared and jumped off
the jeep together with the other passengers. He later returned and found that the driver
was already dead.[15]

On re-direct, he reiterated that he was the only passenger at the jeep's front seat, and
that the appellant was seated at the jeep's rear seats. He maintained that the appellant
shot Bayron.[16]

Sergio, the victim's brother, testified that Bayron was a jeep driver earning more or less
P500.00 daily. He further stated that the funeral and burial expenses for his brother
amounted to P100,000.00. He also added that Bayron had a common-law wife and had
a 1 ½ year-old son with her.[17]

Dr. Cam, the Medico-Legal Officer of the National Bureau of Investigation (NBI), Cebu
City, testified that he conducted a post-mortem examination on the victim's body on
June 2, 2000,[18] and made the following findings:

NECROPSY REPORT

xxxx

GUNSHOT WOUNDS:

1) ENTRANCE: 1.0 x 1.3 cms., ovaloid edges, with an area of tattooing around the
wound, 8.0 x 10.0 cms., contusion collar widest supero-laterally, located at the right side
of the face, below the right eye, 3.5 cms. x x x

2) ENTRANCE: 0.9 x 1.0 cm., ovaloid, edges inverted, contusion collar widest infero-
posteriorly, located at the right side of the head, just in front of the right ear x x x

3) ENTRANCE: 0.6 x 0.8 cm. ovaloid, edges inverted, contusion collar widest, supero-
medially, located at the right side of the head, occipital area, 4.0 cms., above 13.0 cms.,
behind the right external auditory meatus, x x x

POSTMORTEM FINDINGS

Hematoma, scalp, frontal area and right parietal.

Hemorrhage, intracranial, intracerebral, subdural, subarachnoidal, massive, generalized
Internal Organs, congested
Stomach, empty

CAUSE OF DEATH: GUNSHOT WOUNDS OF THE HEAD

Remarks: Two (2) bullets were recovered and submitted to Firearm Investigation Section
for Ballistic Examination.[19]
On cross-examination, Dr. Cam stated that the distance between the muzzle of
the gun and the entrance wounds was two feet, more or less. [20]

The defense presented a different version of events.

Carlito testified that he was with the appellant at the parking lot of the Ayala Business
Park at past 5:00 p.m. of June 1, 2000, when Bayron and another person approached
the appellant. Bayron pointed to the appellant and said: "Pre, pagtarong sa imong
pagkatawo, basig magkaaway ta" (Behave like a good man, otherwise we will become
enemies). The appellant replied, "pre tell me who was the person who told you about
that"?[21] Bayron's companion then accused the appellant of being a traitor. [22]

The jeepney dispatcher soon after called Bayron as it was his jeep's turn to load
passengers.[23] Bayron and his companion boarded the jeep; Bayron sat at the driver's
seat while his companion proceeded to the passengers' seats at the rear. The appellant
followed them into the jeep and sat behind Bayron. There were 5-7 passengers on
board the jeep, one of them at the front seat beside Bayron. Bayron then drove away,
leaving the parking area.[24] According to Carlito, he learned of Bayron's death at 6:30
p.m. of that day.[25]

On cross examination, Carlito testified that he went to Ayala on June 1, 2000 to meet
the appellant to ask for help on his application as a driver.[26] He saw the appellant and
Bayron talking to each other when he arrived, and overheard Bayron warning the
appellant to be careful. Bayron thereafter got into his jeep, followed by the appellant
who sat behind him (Bayron). While inside the jeep, Bayron pointed his finger at the
appellant and continued to argue with the appellant as he drove away. [27] He heard
gunshots 15 minutes after the jeep left the parking area. Carlito later saw the appellant
being apprehended by security guards. [28]

The appellant stated that he was a driver plying the Ayala-Colon route. At around 5:00-
6:00 p.m. of June 1, 2000, he talked to "Lito" at the parking area of the Ayala Business
Center. Lito was a friend of his son who had been asking for his assistance in applying as
a driver.[29] He read a newspaper after talking to Lito. Not long after, Bayron and a
certain Roel came and pointed their fingers at him. Roel uttered, "Even if you are double
your body [sic], I am not afraid."[30] The appellant suspected that Roel was mad at him
for an incident in 1999 when he reprimanded Roel for indiscriminately firing a gun. [31]

The appellant further narrated that Bayron went to the jeep's driver's seat after the
dispatcher called him. Roel followed Bayron but sat on the rear passenger seat. The
appellant also got into the jeep and sat across Roel because he was bothered by what
was happening between Bayron and Roel.[32] He asked Roel to get off the jeep so they
could settle their differences, but Roel instead drew a gun from his waist. [33] The
appellant and Roel wrestled for the gun which discharged while they were grappling for
its possession. Thereafter, Roel immediately alighted from the jeep. The appellant
followed but was unable to catch up with Roel.[34]

On cross examination, the appellant recalled that he read a newspaper at the parking lot
after conversing with Lito. At that point, Bayron and Roel came; Roel pointed a finger at
him and blamed him for his (Roel's) arrest for illegal possession of firearms. [35] Bayron
went to board his jeep when the dispatcher called him; Roel followed him inside the
jeep. The appellant then also boarded the jeep, sitting across Roel to "clear the matter"
with him.[36] When the jeep was already on its way, Roel suddenly drew a gun from his
waist. The appellant held Roel's hand, but the gun went off while they were grappling
for its possession. He did not notice if anyone had been hit. The passengers, including
Roel, ran out of the jeep.[37] The appellant saw the gun on the ground and picked it up.
The appellant tried to follow Roel, but the latter was able to board another jeep.
Thereafter, the security guards arrested appellant and then turned him over to the
police.[38]

P/Sr. Insp. Salinas testified that he conducted a paraffin test on the appellant at the PNP
Regional Crime Laboratory on June 2, 2000 to determine the presence of gunpowder
nitrates. The appellant tested negative for the presence of gunpowder nitrates. [39]

On cross examination, P/Sr. Insp. Salinas explained that the absence of gunpowder
nitrates was not conclusive proof that person did not fire a gun. According to him, a
person could remove traces gunpowder nitrates by washing his hands. [40]

The RTC convicted the appellant of the crime of murder in its decision of May 29, 2001,
as follows:

WHEREFORE, in view of the foregoing facts and circumstances, accused Samsom

B. Villasan is found guilty beyond reasonable doubt of the crime of Murder and is
hereby imposed the penalty of RECLUSION PERPETUA, with the accessory penalties of
the law; to indemnify the heirs of the deceased Jacinto Bayron in the sum of P50,000.00
and to pay the costs.

The accused is, however, credited in full during the whole period of his detention
provided that he will signify in writing that he will abide by all the rules and regulations
of the penitentiary.

SO ORDERED.[41]

The appellant directly appealed to this Court in view of the penalty of reclusion
perpetua that the RTC imposed. We referred the case to the Court of Appeals for
intermediate review pursuant to our ruling in People v. Mateo.[42]

The CA affirmed the RTC Decision in toto in its May 25, 2006 Decision.[43]

In his brief,[44] the appellant argued that the prosecution failed to prove his guilt beyond
reasonable doubt.

THE COURT'S RULING

We deny the appeal but modify the awarded indemnities.

Sufficiency of Prosecution Evidence

An established rule in appellate review is that the trial court's factual findings, including
its assessment of the credibility of the witnesses and the probative weight of their
testimonies, as well as the conclusions drawn from the factual findings, are accorded
respect, if not conclusive effect. These factual findings and conclusions assume greater
weight if they are affirmed by the CA. Despite the RTC and the CA's unanimity in the
findings of fact, we nevertheless carefully scrutinized the records of this case, as the
penalty of reclusion perpetua demands no less than this kind of scrutiny. [45]

Gaudioso, in his July 25, 2000 testimony, positively identified the appellant as the
person who shot Bayron inside the latter's own jeepney on June 1, 2000; he never
wavered in pointing to the appellant as the assailant. To directly quote from the
records:
FISCAL VICTOR LABORTE:
Q: At about 6:30 in the evening of June 1, 2000, can you recall where you were?
GAUDIOSO QUILATON:
A: Yes, I can remember.
Q: Please tell the Court where you were at that particular date and time.
A: When I went out of my work place, I boarded a jeep.
Q: In what place did you board the jeep?
A: At the waiting shed at the Ayala, where the jeepney stop is located.
Q: Where is this Ayala situated, in what city?
A: Cebu City.
Q: Were you the only one who boarded that jeepney?
A: We were four (4), sir.
Q: I see. In what particular seat of the jeepney were you seated?
A: Front seat, sir.
Q: While you were on board that jeepney, what happened?
A: First, the driver had conversation.
Q: With whom did that driver have conversation?
A: The one who shot. [sic]
Q: So, what happened afterwards, while that man and the jeepney driver were talking
with each other?
A: First, I heard there was a request that he would be boarding a jeepney because his
jeep conked up. [sic]
Q: Who made that request?
A: That one person who shot. [sic]
Q: And what happened afterwards, after that request was made by the person to the
driver?
A: He was able to board.
Q: And then what happened next?
A: Then I heard one (1) gunshot.
Q: And what did you do when you heard that gunshot?
A: I turned towards my back.
Q: And what did you see, if any, when you turned your head?
A: When I turned back, there were two (2) gunshots I heard, two (2) gunshots. [sic]
Q: You only heard two (2) gunshots?
A: Three (3), sir: the first one, and then followed by two (2) gunshots.
Q: Who caused that gunshot?
A: That person who shot the driver.
Q: Did you actually see that person shot the driver?
A: Yes.
Q: How far were you to that person who shot the driver?
A: Very near.
Q: How near?
A: Two (2) "dangaw" only, which may be loosely translated as thumb and forefinger
extended, is less than, from the thumb to the forefinger, because he was sitting at my back.
[sic]
Q: Was the driver hit?
A: Yes, he was hit.
 Q: In what portion of his body was the driver hit?
A: On his head.
Q: Now, if that person, whom you said you saw shot the driver, is in the courtroom
now, can you point to him?
A: Yes, I can.
Q: Please point to that person.
A: That man, third (3rd) from the left.
(Witness pointed to the person who stood up and identified himself as Samson
Villasan)
x
xxx
Q: Now you told the Court Mr. Witness that you were the only one seated at the front of
the jeepney, Right?
A: Yes.
Q: And three other passengers were at the back of the jeepney?
A: Yes.
Q: And one of the three passengers at the back shot the driver?
A: That's right, sir.
Q: Is that person whom you saw shot the driver inside the courtroom now?
A: He is around.
Q: Can you point to him again?
A: Yes.
Q: Please do.
A: That person.
(Witness pointing to the person who stood up and identified himself as Samson
Villasan).
x x x x[46] [Emphasis supplied]

Time and again, we have ruled that the credibility of witnesses is a matter best left to
the determination of the trial court as this tribunal had the actual opportunity to
observe the witnesses firsthand and to note their demeanor, conduct, and attitude. The
trial court's assessment of the credibility of witnesses is binding on this Court, except
when that tribunal overlooked facts and circumstances of weight and influence that can
alter the result.[47]

We carefully scrutinized the records of this case and found no reason to disbelieve
Gaudioso's straightforward narration of the events surrounding Bayron's death. Nor did
we see anything on record indicating any improper motive that could have led Gaudioso
to falsely testify against the appellant. In fact, the appellant never imputed any ill motive
on Gaudioso. To reiterate, Gaudioso and the appellant were in the same jeep during the
shooting incident; there was light inside the jeep. More importantly, Gaudioso saw the
actual shooting because he was "very near" the appellant when the latter shot Bayron.
To Gaudioso, what he witnessed must have been a shocking and startling event he
would not forget in a long, long time. Under these circumstances, we entertain no doubt
on the positive identification of the appellant as the assailant.

The Appellant's Defenses

The appellant sought to exculpate himself by claiming that the shooting of Bayron was
accidental; and that he (appellant) was not sure who pulled the trigger because the gun
went off when he and Roel were grappling for its possession.

We do not find the appellant's claim of accidental shooting believable as it contradicts

the available physical evidence provided by Dr. Cam that the victim
suffered three gunshot wounds on the face and head. Dr. Cam's Necropsy Report
corroborated by the Autopsy Report of the Cosmopolitan Funeral Homes showing that
the victim suffered a total of three gunshot wounds, supported the testimony of
Gaudioso that the appellant shot the victim thrice. Jose notably also testified that he
heard three successive gunshots. These pieces of evidence are clearly inconsistent with
the appellant's claim that the victim's shooting was accidental and that only one shot
was fired.

The nature, number and location of the victim's gunshot wounds also belie the
appellant's claim of accidental shooting. The three wounds, all sustained in the head and
the face from shots coming from the rear, are clearly indicative of a determined effort to
end the victim's life.

The appellant nonetheless claims that his identity as the assailant was not proven with
certainty as no trace of gunpowder nitrates was found in his hand.

We do not find the appellant's claim persuasive.

While the appellant tested negative for gunpowder nitrates, Forensic Chemist Salinas
testified that a paraffin test is not conclusive proof that one has not fired a gun. This
view is fully in accord with past findings and observations of this Court that paraffin
tests, in general, are inconclusive; the negative findings in paraffin tests do not
conclusively show that a person did not discharge a firearm. [48] Our ruling in People v.
Teehankee, Jr.[49]  on this point is particularly instructive:

Scientific experts concur in the view that the paraffin test has "... proved
extremely unreliable in use. The only thing that it can definitely establish is the
presence or absence of nitrates or nitrites on the hand. It cannot be established from
this test alone that the source of the nitrates or nitrites was the discharge of a firearm.
The person may have handled one or more of a number of substances which give the
same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers,
pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who
uses tobacco may also have nitrate or nitrite deposits on his hands since these
substances are present in the products of combustion of tobacco." In numerous rulings,
we have also recognized several factors which may bring about the absence of
gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his
hands after firing the gun, wears gloves at the time of the shooting, or if the direction
of a strong wind is against the gunman at the time of firing. x x x x [Emphasis ours]

In sum, the positive, clear and categorical testimonies of the prosecution witnesses
deserve full merit in both probative weight and credibility over the negative results of
the paraffin test conducted on the appellant.

The Crime Committed

Article 248 of the Revised Penal Code defines the crime of murder as follows:

Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death if
committed with any of the following attendant circumstances:

1. With treachery, x x x

In convicting the appellant of murder, the courts a quo appreciated treachery. This

circumstance exists when the offender commits any of the crimes against persons,
employing means, method or forms which tend directly and especially to ensure its
execution, without risk to the offender, arising from the defense that the offended party
might make. This definition sets out what must be shown by evidence to conclude that
treachery existed, namely: (1) the employment of means of execution that gives the
person attacked no opportunity for self-defense or retaliation; and (2) the deliberate
and conscious adoption of this means of execution.[50] The essence of this qualifying
circumstance is in the elements of suddenness and surprise, and the lack of expectation
that the attack would take place, thus depriving the victim of any real opportunity for
self-defense while ensuring the commission of the crime without risk to the offender. [51]
The evidence in this case showed that the appellant briefly talked with Bayron as the
latter sat on the jeep's driver's seat preparatory to driving off. Thereafter, the appellant
entered the jeep through its rear entrance, and sat behind Bayron. Not long after
Bayron started his jeep, the appellant shot him three times, hitting him in the head and
at the side of the face. This manner and mode of attack by the appellant, to our mind,
indicate treachery. The appellant's attack came without warning, and was swift and
sudden. The appellant attacked Bayron from behind; the unsuspecting victim had no
expectation of the coming attack and was totally defenseless against it. From these
facts, the appellant clearly and purposely DENIED the victim of any real chance to
defend himself and secured the commission of the crime without risk to himself. [52]

In People v. Vallespin,[53] we explained:

The essence of treachery is the sudden and unexpected attack by the aggressor
on the unsuspecting victim, depriving the latter of any real chance to defend himself,
thereby ensuring its commission without risk to the aggressor and without the slightest
provocation on the part of the victim. It can exist even if the attack is frontal, if it is
sudden and unexpected, giving the victim no opportunity to defend himself against such
attack. In essence, it means that the offended party was not given an opportunity to
make a defense.

No Evident Premeditation

The Information alleged that the crime was committed with evident premeditation. We
do not find any evidentiary support for this allegation.

Evident premeditation, like other qualifying circumstances, must be established by clear

and positive evidence showing that planning and preparation took place prior to the
killing. For evident premeditation to be appreciated, the prosecution must show the
following: (1) the time the accused determined to commit the crime; (2) an act
manifestly indicating that the accused clung to this determination; and (3) a sufficient
lapse of time between the resolve to kill and its execution that would have allowed the
killer to reflect on the consequences of his act. [54] Significantly, the prosecution did not
even attempt to prove the presence of these elements. In People v. Sison,[55] we held
that evident premeditation should not be appreciated where there is neither evidence
of planning or preparation to kill nor of the time when the plot was conceived.

The Proper Penalty

The crime of murder qualified by treachery is penalized under Article 248 of the Revised
Penal Code (as amended by Republic Act No. 7659) with reclusion perpetua to death.

While evident premeditation was alleged in the Information, this circumstance was not
adequately proven. Hence, in the absence of mitigating and aggravating circumstances
in the commission of the felony, the courts a quo correctly sentenced the appellant
to reclusion perpetua, conformably with Article 63(2) of the Revised Penal Code.

Civil Liability

The grant of civil indemnity as a consequence of the crime of murder requires no proof
other than the fact of death as a result of the crime and proof of the appellant's
responsibility therefor. While the RTC and the CA commonly awarded P50,000.00 as
death indemnity to the murder victim's heirs, prevailing jurisprudence dictates an award
of P75,000.00.[56] Hence, we modify the award of civil indemnity to this extent, to be
paid by the appellant to the victim's heirs.

Moral damages are likewise mandatory in cases of murder and homicide. We award
P50,000.00 as moral damages to the victim's heirs in accordance with prevailing rules. [57]

The heirs of the victim are likewise entitled to exemplary damages since the qualifying
circumstance of treachery was firmly established. When a crime is committed with an
aggravating circumstance, either qualifying or generic, an award of P25,000.00 as
exemplary damages is justified under Article 2230 of the New Civil Code. [58]

The lower courts were correct in not awarding actual damages to the victim's heirs
because they failed to present any supporting evidence for their claim. To be entitled to
actual damages, it is necessary to prove the actual amount of loss with reasonable
certainty, based on competent proof and the best evidence obtainable by the injured
party. In the absence of proof, jurisprudence dictates an award of P25,000.00 as
temperate damages for the victim's heirs on the reasonable assumption that when
death occurs, the family of the victim incurred expenses for the wake and the funeral. [59]

We cannot award indemnity for loss of earning capacity to the victim's heirs because no
documentary evidence was presented to substantiate this claim. As a rule, documentary
evidence should be presented to substantiate a claim for this type of damages. While
there are exceptions to the rule, these exceptions do not apply; although self-employed,
Bayron did not earn less than the current minimum wage under current labor laws. [60]

WHEREFORE, in light of all the foregoing, we hereby AFFIRM the May 25, 2006 Decision
of the Court of Appeals in CA-G.R. CR H.C. No. 00250 with the
following MODIFICATIONS:

(1) the awarded civil indemnity is INCREASED to P75,000.00;

(2) the appellant is ORDERED to PAY the heirs of the victim P50,000.00 as moral

damages;

(3) the appellant is ORDERED to PAY the heirs of the victim P25,000.00 as exemplary

damages; and

(4) the appellant is ORDERED to PAY the heirs of the victim P25,000.00 as temperate

damages.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 202514, July 25, 2016 ]
ANNA MARIE L. GUMABON, PETITIONER, VS. PHILIPPINE NATIONAL
BANK, RESPONDENT.

DECISION

BRION, J.:

Before us is a petition for review on certiorari[1] under Rule 45 of the Rules of

Court filed by Anna Marie Gumabon (Anna Marie) assailing the December 16, 2011
decision[2] and June 26, 2012 resolution[3] of the Court of Appeals (CA) in CA-G.R. CV. No.
96289. The CA reversed the Regional Trial Court (RTC)'s ruling[4] in Civil Case No. Q-04-
53432 favoring Anna Marie.

The Facts
On August 12, 2004, Anna Marie filed a complaint for recovery of sum of money and
damages before the RTC against the Philippine National Bank (PNB) and the PNB Delta
branch manager Silverio Fernandez (Fernandez). The case stemmed from the PNB's
refusal to release Anna Marie's money in a consolidated savings account and in two
foreign exchange time deposits, evidenced by Foreign Exchange Certificates of Time
Deposit (FXCTD).

In 2001, Anna Marie, together with her mother Angeles and her siblings Anna Elena and
Santiago, (the Gumabons) deposited with the PNB Delta Branch $10,945.28 and
$16,830.91, for which they were issued FXCTD Nos. A-993902[5] and A-993992,
[6]
 respectively.

The Gumabons also maintained eight (8) savings accounts[7] in the same bank. Anna
Marie decided to consolidate the eight (8) savings accounts and to withdraw P-
2,727,235.85 from the consolidated savings account to help her sister's financial needs.

Anna Marie called the PNB employee handling her accounts, Reino Antonio Salvoro
(Salvoro), to facilitate the consolidation of the savings accounts and the withdrawal.
When she went to the bank on April 14, 2003, she was informed that she could not
withdraw from the savings accounts since her bank records were missing and Salvoro
could not be contacted.

On April 15, 2003, Anna Marie presented her two FXCTDs, but was also unable to
withdraw against them. Fernandez informed her that the bank would still verify and
investigate before allowing the withdrawal since Salvoro had not reported for work.

Thus, Anna Marie sent two demand letters[8] dated April 23 and April 25, 2003 to the
PNB.

After a month, the PNB finally consolidated the savings accounts and issued a passbook
for Savings Account (SA) No. 6121200.[9] The PNB also confirmed that the total deposits
amounted to P-2,734,207.36. Anna Marie, her mother, and the PNB executed a Deed of
Waiver and Quitclaim dated May 23, 2003[10] to settle all questions regarding the
consolidation of the savings accounts. After withdrawals, the balance of her
consolidated savings account was P250,741.82.
On July 30, 2003, the PNB sent letters to Anna Marie to inform her that the PNB refused
to honor its obligation under FXCTD Nos. 993902 and 993992,[11] and that the PNB
withheld the release of the balance of P-250,741.82 in the consolidated savings account.
[12]
 According to the PNB, Anna Marie pre-terminated, withdrew and/or debited sums
against her deposits.

Thus, Anna Marie filed before the RTC a complaint for sum of money and damages
against the PNB and Fernandez.[13]

As to the two FXCTDs, Anna Marie contended that the PNB's refusal to pay her time
deposits is contrary to law. The PNB cannot claim that the bank deposits have been paid
since the certificates of the time deposits are still with Anna Marie. [14]

As to the consolidated savings account, Anna Marie stated that the PNB had already
acknowledged the account's balance in the Deed of Waiver and Quitclaim amounting to
P2,734,207.36. As of January 26, 2004, the remaining balance was P250,741.82. PNB
presented no concrete proof that this amount had been withdrawn.

Anna Marie prayed that the PNB and Fernandez be held solidarily liable for actual,
moral, and exemplary damages, as well as attorney's fees, costs of suit, and legal
interests because of the PNB's refusal to honor its obligations.

In its answer,[15] the PNB argued that: (1) Anna Marie is not entitled to the balance of the
consolidated savings account based on solutio indebiti; (2) the PNB already paid the
$10,058.01 covered by FXCTD No. 993902; (3) the PNB is liable to pay only $10,718.87 of
FXCTD No. 993992, instead of the full amount of $17,235.41; and (4) Anna Marie is
guilty of contributory negligence. The PNB's arguments are discussed below.

First, Anna Marie is not entitled to the alleged balance of P250,741.82. The PNB's
investigation showed that Anna Marie withdrew a total of P251,246.81 [16] from two of
the eight savings accounts and she used this amount to purchase manager's check no.
0000760633.[17] Hence, P251,246.81 should be deducted from the sum agreed upon in
the Deed of Waiver and Quitclaim. The PNB offered photocopies of the
PNB's miscellaneous ticket[18] and the manager's check as evidence to prove the
withdrawals. The PNB argued that unjust enrichment would result if Anna Marie would
be allowed to collect P-250,741.82 from the consolidated savings account without
deducting her previous withdrawal of P251,246.81.
Second, Anna Marie is not entitled to receive $10,058.01 covered by FXCTD No. 993902.
Based on the PNB's records, Anna Marie pre-terminated FXCTD No. 993902 on March
11, 2002, and used the deposit, together with another deposit covered by FXCTD No.
993914 (for $8,111.35), to purchase a foreign demand draft (FX Demand Draft No.
4699831) payable to Anna Rose/Angeles Gumabon. The PNB presented a facsimile copy
of Anna Rose's Statement of Account (SOA)[19] from the PNB Bank to prove that the
amount covered by FXCTD No. 993902 was already paid.

Third, Anna Marie is only entitled to receive $10,718.87 instead of the full amount of
$17,235.41 covered by FXCTD No. 993992 because: (a) the amount of $1,950.00 was
part of the money used by Anna Marie to purchase the manager's check; (2) the amount
of $2,566.54 was credited to Current Account No. 227-810961-8 owned by Anna Marie's
aunt, Lolita Lim; and (3) the amount of $2,000.00 was credited to Current Account No.
2108107498 of Anna Marie and Savings Account No. 212-5057333 of Anna Marie/or
Angeles or Santiago/or Elena (all surnamed Gumabon). Hence, these amounts should be
deducted from the amount payable to Anna Marie.

Finally, the PNB alleged that Anna Marie was guilty of contributory negligence in her
bank dealings.

In her reply,[20] Anna Marie argued that the best evidence of her withdrawals is the
withdrawal slips duly signed by her and the passbooks pertaining to the accounts. PNB,
however, failed to show any of the withdrawal slips and/or passbooks, and also failed to
present sufficient evidence that she used her accounts' funds.

The RTC Ruling

The RTC ruled in Anna Marie's favour.[21]

The RTC held that the PNB had not yet paid the remaining balance of $10,058.01 under
FXCTD No. 993902. Anna Marie's SOA,[22] which the PNB relied upon, is a mere
photocopy and does not satisfy the best evidence rule. Moreover, there is no indication
on the stated amounts in the SOA that the funds have come from FXCTD No. 993902.
[23]
 The PNB failed to obtain the deposition of a PNC Bank officer or present any other
evidence to show that the amounts stated in the SOA came from FXCTD No. 993902.
The RTC also held that the alleged pre-termination of FXCTD No. 993902 on March 11,
2002, is hard to believe since the certificate shows that the last entry was made on
March 24, 2003, with a reflected balance of $10,058.01.

On FXCTD No. 993992, the RTC held that the PNB failed to prove Anna Marie's alleged
withdrawals. These alleged withdrawals are not reflected at the back of the certificate.
Anna Marie's ledger was also not presented as evidence to show that several
withdrawals had been made against FXCTD No. 993992.

On the consolidated savings account, the RTC held that the PNB failed to prove that
Anna Marie withdrew the balance of P250,741.82. The RTC excluded PNB's
evidence, i.e., photocopies of the miscellaneous ticket and manager's check, to prove
the alleged withdrawals, since these documents were just photocopies and thus failed
to satisfy the best evidence rule.

The RTC awarded damages to Anna Marie due to the PNB's mishandling of her account
through its employee, Salvoro. The RTC also held that the PNB failed to establish Anna
Marie's contributory negligence.

In conclusion, the RTC ordered the PNB to pay Anna Marie these amounts:
(1) Actual damages of:
(a) $10,058.01, as the outstanding balance of FXCTD No. 993902;
(b) $20,244.42, as the outstanding balance of FXCTD No. 993992;and
(c) P-250,741.82, as the outstanding balance of SA No. 6121200;
(2) P-100,000.00 as moral damages;
(3) P-50,000.00 as exemplary damages;
(4) P150,000.00 as attorney's fees; and
(5) Costs of suit.

From this ruling, the PNB appealed before the CA.

The CA Ruling

The CA reversed the RTC's ruling.[24]

The CA held that the PNB had paid the actual amounts claimed by Anna Marie in her
complaint. The CA noted Anna Marie's suspicious and exclusive dealings with Salvoro
and the Gumabons' instruction to Salvoro to make unauthorized and unrecorded
withdrawals. Hence, there are no entries of withdrawals reflected in Anna Marie's
passbook.
The CA also considered Anna Rose's SOA as proof that the PNB had paid the remaining
balance of $10,058.01 on FXCTD No. 993902. The CA held that the PNB verified the SOA
and it was corroborated by the affidavit[25] of the PNB Branch Operations Officer in New
York. The CA stated that the RTC should have allowed the taking of the deposition of the
PNB bank officer.

The CA also relied on the PNB's investigation and concluded that the PNB had already
paid the amounts claimed by Anna Marie under FXCTD Nos. 993902 and 993992.

As to Anna Marie's consolidated savings account, the CA gave credence to the

miscellaneous ticket and the manager's check presented by the PNB to prove that it had
already paid the balance.

Anna Marie moved but failed to obtain reconsideration of the CA's decision; hence, the
present petition.[26]

The Petition

Anna Marie filed the present petition for review to question the CA's decision and
resolution which reversed the RTC's ruling.

Anna Marie argues that: first, the CA should not have disregarded the RTC's conclusive
findings; second, the CA erred in considering the PNB New York bank officer's affidavit
because it was not formally offered as evidence; third, the CA erroneously relied on a
foreign demand draft[27] to prove the PNB's payment of the amount due under FXCTD
No. 993902; fourth, the CA erroneously considered the miscellaneous ticket and the
manager's check because these documents are mere photocopies and inadmissible
under the best evidence rule; and fifth, the CA's conclusion about a purported
"connivance" between Anna Marie and Salvoro has no evidentiary basis.

In its comment, the PNB counters that: first, the CA can rectify the RTC's factual findings
since the RTC committed errors in its appreciation of the evidence; second, the RTC
completely ignored the PNB's several evidence proving its payment of Anna Marie's
FXCTDs; third, Anna Marie did not refute the PNB's allegations of payment; fourth, the
CA has the right to review even those exhibits which were excluded by the RTC;
and fifth, the CA correctly ruled that the PNB should not be faulted about the
unrecorded transactions, and that the PNB had done its duty to its depositors when it
conducted investigations and an internal audit of Anna Marie's accounts.

The Issues

The issue before this Court is whether Anna Marie is entitled to the payment of the
following amounts:

(a) $10,058.01 or the outstanding balance under FXCTD No. 993902;

(b) $20,244.42 for FXCTD No. 993992;
(c) P250.741.82 for SA No. 6121200; and (3) Damages.

Our Ruling

We grant the petition and reverse the CA 's ruling.

The core issue raised in the present petition is a question of fact. As a general rule, a
petition for review under Rule 45 of the Rules of Court covers only questions of law.
Questions of fact are not reviewable and cannot be passed upon by the Court in the
exercise of its power to review under Rule 45.[28]

There are, however, exceptions to the general rule. Questions of fact may be raised
before this Court in any of these instances: (1) when the findings are grounded entirely
on speculations, surmises, or conjectures; (2) when the inference made is manifestly
mistaken, absurd, or impossible; (3) when there is a grave abuse of discretion; (4) when
the judgment is based on misappreciation of facts; (5) when the findings of fact are
conflicting; (6) when in making its findings, the same are contrary to the admissions of
both appellant and appellee; (7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent; and (10) when the
findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record.[29]

The present case falls under two of the exceptions, particularly that the CA's findings are
contrary to the RTC's findings, and that the CA's findings of fact are premised on absent
evidence and contradicted by the evidence on record.
We note that the CA considered pieces of evidence which are inadmissible under the
Rules of Court, particularly the manager's check and the corresponding miscellaneous
ticket, Anna Rose's SO A, and the affidavit of the PNB New York's bank officer. The
inadmissibility of these documents is explained more fully in the following discussion.

PNB failed to establish the fact of

payment to Anna Marie in FXCTD
Nos. 993902 and 993992, and SA
No. 6121200.

It is a settled rule in evidence that the one who alleges payment has the burden of
proving it.[30] The burden of proving that the debt had been discharged by payment rests
upon the debtor once the debt's existence has been fully established by the evidence on
record. When the debtor introduces some evidence of payment, the burden of going
forward with the evidence - as distinct from the burden of proof - shifts to the creditor.
Consequently, the creditor has a duty to produce evidence to show nonpayment.[31]

In the present case, both the CA and the RTC declared that the PNB has the burden of
proving payment. The lower courts, however, differed in resolving the question of
whether the PNB presented sufficient evidence of payment to shift the burden of
evidence to Anna Marie. The RTC ruled that the PNB failed to do so, after excluding
PNB's evidence, i.e., miscellaneous ticket, manager's check, and the affidavit of the PNB
New York's bank officer, based on the rules of evidence. The CA, on the other hand,
considered the excluded evidence and found that the PNB presented sufficient proof of
payment.

i. The PNB's alleged payment of the

amount covered by SA No. 6121200

The PNB alleged that it had already paid the balance of the consolidated savings account
(SA No. 6121200) amounting to P-250,741.82. It presented the manager's check to
prove that Anna Marie purchased the check using the amounts covered by the
Gumabon's two savings accounts which were later part of Anna Marie's consolidated
savings account. The PNB also presented the miscellaneous ticket to prove Anna Marie's
withdrawal from the savings accounts.

The RTC denied the admission of the manager's check and the miscellaneous ticket since
the original copies were never presented.[32] The PNB moved to tender the excluded
evidence and argued that even without the presentation of the original copies, the
photocopies are admissible because they have been identified by Fernandez. [33]

Evidence, to be admissible, must comply with two qualifications: (a) relevance and (b)
competence. Evidence is relevant if it has a relation to the fact in issue as to induce a
belief in its existence or nonexistence.[34] On the other hand, evidence is competent if it
is not excluded by the law or by the Rules of Court. [35]

One of the grounds under the Rules of Court that determines the competence of
evidence is the best evidence rule. Section 3, Rule 130 of the Rules of Court provides
that the original copy of the document must be presented whenever the content of the
document is under inquiry.[36]

However, there are instances when the Court may allow the presentation of secondary
evidence in the absence of the original document. Section 3, Rule 130 of the Rules of
Court enumerates these exceptions:

(a) when the original has been lost, or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;

(b)  when the original is in the custody or under the control of the party against whom
the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) when the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and

(d) when the original is a public record in the custody of a public officer or is recorded in
a public office.

While the RTC cannot consider the excluded evidence to resolve the issues, such
evidence may still be admitted on appeal provided there has been tender of the
excluded evidence under Section 40 of Rule 132 of the Rules of Court. [37]

The PNB cannot simply substitute the mere photocopies of the subject documents for
the original copies without showing the court that any of the exceptions under Section 3
of Rule 130 of the Rules of Court applies. The PNB's failure to give a justifiable reason for
the absence of the original documents and to maintain a record of Anna Marie's
transactions only shows the PNB's dismal failure to fulfill its fiduciary duty to Anna
Marie.[38] The Court expects the PNB to "treat the accounts of its depositors with
meticulous care, always having in mind the fiduciary nature of their relationship." [39] The
Court explained in Philippine Banking Corporation v. CA,[40] the fiduciary nature of the
bank's relationship with its depositors, to wit:

The business of banking is imbued with public interest. The stability of banks
largely depends on the confidence of the people in the honesty and efficiency of banks.
In Simex International (Manila) Inc. v. Court of Appeals we pointed out the depositor's
reasonable expectations from a bank and the bank's corresponding duty to its
depositor, as follows:

In every case, the depositor expects the bank to treat his account with the utmost
fidelity, whether such account consists only of a few hundred pesos or of millions. The
bank must record every single transaction accurately, down to the last centavo, and as
promptly as possible.  This has to be done if the account is to reflect at any given time
the amount of money the depositor can dispose of as he sees fit, confident that the
bank will deliver it as and to whomever he directs, (emphasis and underscoring
supplied)

Consequently, the CA should not have admitted the subject documents even if the PNB
tendered the excluded evidence.

Notably, the PNB clearly admitted in the executed  Deed of Waiver and Quitclaim that it
owed Anna Marie P2,734,207.36 under the consolidated savings account. After a
number of uncontested transactions, the remaining balance of Anna Marie's deposit
became P250,741.82. The inevitable conclusion is that PNB's obligation to pay
P250,741.82 under SA No. 6121200 subsists.

ii. The PNB's alleged payment of the

amount covered by FXCTD No. 993902

The PNB claimed that it had already paid the amount of $10,058.01 covered by FXCTD
No. 993902. It presented the foreign demand draft dated March 11, 2002 which Anna
Marie allegedly purchased with the funds of FXCTD No. 993902. In addition, the PNB
also presented Anna Rose's SOA to show that there was a fund transfer involving the
contested amount. To further support its claim, the PNB annexed the affidavit of the
PNB New York's branch officer about the fund transfer. The PNB, however, failed to
formally offer the affidavit as evidence.

Anna Marie moved for the exclusion of the photocopy of Anna Rose's SOA for failing to
conform to the best evidence rule. The RTC granted her motion and denied its
admission. When the case reached the CA, the CA stated that the RTC should have
considered the evidence in the light of the PNB's identification of the SOA as an exact
copy of the original and the claim that it is corroborated by the affidavit of the PNB New
York's bank officer.

The PNB explained that its failure to present the original copy of Anna Rose's SOA was
because the original was not in the PNB's possession.

We rule that the SOA is inadmissible because it fails to qualify as relevant evidence. As

the RTC correctly stated, the SOA "does not show which of the amount stated therein
came from the funds of Certificate of Time Deposit No. A-993902." [41]

The affidavit of the PNB New York's bank officer is also inadmissible in the light of the
following self-explanatory provision of the Rules of Court:

"Sec. 34. Offer of evidence. - The court shall consider no evidence which has not
been formally offered, x x x."[42]

Formal offer means that the offeror shall inform the court of the purpose of introducing
its exhibits into evidence. Without a formal offer of evidence, courts cannot take notice
of this evidence even if this has been previously marked and identified. [43]

In Heirs of Pedro Pasag v. Parocha,[44] we reiterated the importance of a formal offer of

evidence. Courts are mandated to rest their factual findings and their judgment only and
strictly upon the evidence offered by the parties at the trial. The formal offer enables
the judge to know the purpose or purposes for which the proponent is presenting the
evidence. It also affords the opposing parties the chance to examine the evidence and to
object to its admissibility. Moreover, it facilitates review as the appellate court will not
be required to review documents not previously scrutinized by the trial court.

In People v. Napat-a[45] People v. Mate[46] and Heirs of Romana Saves, et al. v. Escolastico

Saves, et al.[47] we recognized the exceptions from the requirement of a formal offer of
evidence, namely: (a) the evidence must have been duly identified by testimony duly
recorded; and (b) the evidence must have been incorporated in the records of the case.

It is unmistakable that the PNB did not include the affidavit of the PNB New York's bank
officer in its formal offer of evidence to corroborate Anna Rose's SOA. Although the
affidavit was included in the records and identified by Fernandez, it remains
inadmissible for being hearsay. Jurisprudence dictates that an affidavit is
merely hearsay evidence when its affiant or maker did not take the witness stand. [48]

In the present case, Fernandez is not the proper party to identify the affidavit executed
by the PNB New York's bank officer since he is not the affiant. Therefore  the affidavit is
inadmissible.

Thus, the PNB failed to present sufficient and admissible evidence to prove payment of
the $10,058.01.This failure leads us to conclude that the PNB is still liable to pay the
amount covered by FXCTD No. 993902.

iii. The PNB's alleged payment of

the amount covered by FXCTD
No. 993992

The PNB alleged that Anna Marie's claim over FXCTD No. 993992 should only be limited
to $5,857.79. It presented the manager's check, which admissibility we have heretofore
discussed and settled, and the miscellaneous tickets.

We cannot absolve the PNB from liability based on these miscellaneous tickets alone. As
the RTC correctly stated, the transactions allegedly evidenced by these tickets were
neither posted at the back of Anna Marie's certificate, nor recorded on her ledger to
show that several withdrawals had been made on the account.

At this point, we remind the PNB of the negotiability of a certificate of deposit as it is a

written acknowledgment by the bank of the receipt of a sum of money on deposit which
the bank promises to pay to the depositor, to the latter's order, or to some other person
or the latter's order.[49] To discharge a debt, the bank must pay to someone authorized
to receive the payment.[50] A bank acts at its peril when it pays deposits evidenced by a
certificate of deposit, without its production and surrender after proper indorsement. [51]

Again, as the RTC had correctly stated, the PNB should not have allowed the
withdrawals, if there were indeed any, without the presentation of the covering foreign
certificates of time deposit. There are no irregularities on Anna Marie's certificates to
justify the PNB's refusal to pay the stated amounts in the certificates when it was
presented for payment.

Therefore, the PNB is liable for Anna Marie's claims since it failed to prove that it had
already been discharged from its obligation.

PNB is liable to Anna Marie

for actual, Moral, and exemplary
damages as well as attorney's fees
for its negligent acts as a
banking institution.

Since the PNB is clearly liable to Anna Marie for her deposits, the Court now determines
PNB's liability for damages under existing laws and jurisprudence.

Section 2 of Republic Act No. 8791,[52] declares the State's recognition of the "fiduciary
nature of banking that requires high standards of integrity and performance." It cannot
be overemphasized that the banking business is impressed with public interest. The
trust and confidence of the public to the industry is given utmost importance. [53] Thus,
the bank is under obligation to treat its depositor's accounts with meticulous care,
having in mind the nature of their relationship. [54] The bank is required to assume a
degree of diligence higher than that of a good father of a family. [55]

As earlier settled, the PNB was negligent for its failure to update and properly handle
Anna Marie's accounts. This is patent from the PNB's letter to Anna Marie, admitting the
error and unauthorized withdrawals from her account. Moreover, Anna Marie was led
to believe that the amounts she has in her accounts would remain because of the Deed
of Waiver and Quitclaim executed by her, her mother, and PNB.
Assuming arguendo that Anna Marie made the contested withdrawals, due diligence
requires the PNB to record the transactions in her passbooks.

The Court has established in a number of cases the standard of care required from
banks, and the bank's liability for the damages sustained by the depositor. The bank is
not absolved from liability by the fact that it was the bank's employee who committed
the wrong and caused damage to the depositor. [56] Article 2180 of the New Civil Code
provides that the owners and managers of an establishment are responsible for
damages caused by their employees while performing their functions. [57]

In addition, we held in PNB v. Pike,[58] that although the bank's employees are the ones
negligent, a bank is primarily liable for the employees' acts because banks are expected
to exercise the highest degree of diligence in the selection and supervision of their
employees.

Indeed, a great possibility exists that Salvoro was involved in the unauthorized
withdrawals. Anna Marie entrusted her accounts to and made her banking transactions
only through him. Salvaro's unexplained disappearance further confirms this Court's
suspicions. The Court is alarmed that he was able to repeatedly do these unrecorded
transactions without the bank noticing it. This only shows that the PNB has been
negligent in the supervision of its employees.

As to contributory negligence, the Court agrees with the RTC that the PNB failed to
substantiate its allegation that Anna Marie was guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a

legal cause to the harm he has suffered, which falls below the standard to which he is
required to conform for his own protection.[59] Whether contributory negligence
transpired is a factual matter that must be proven.

In the present case, Anna Marie cannot be held responsible for entrusting her account
with Salvoro. As shown in the records, Salvoro was the bank's time deposit specialist.
Anna Marie cannot thus be faulted if she engaged the bank's services through Salvoro
for transactions related to her time deposits.

The Court also cannot accept the CA's conclusion that there was connivance between
Anna Marie and Salvoro. This conclusion is simply not supported by the records and is
therefore baseless.

In these lights, we hold that Anna Marie is entitled to moral damages of P-l 00,000.00. In
cases of breach of contract, moral damages are recoverable only if the defendant acted
fraudulently or in bad faith, or is guilty of gross negligence amounting to bad faith, or in
clear disregard of his contractual obligations. [60] Anna Marie was able to establish the
mental anguish and serious anxiety that she suffered because of the PNB's refusal to
honor its obligations.

Anna Marie is likewise entitled to exemplary damages of P-50,000.00. Article 2229 of

the New Civil Code imposes exemplary damages by way of example or correction for the
public good. To repeat, banks must treat the accounts of its depositors with meticulous
care and always have in mind the fiduciary nature of its relationship with them.
[61]
 Having failed to observe these, the award of exemplary damages is justified.

As exemplary damages are awarded herein[62] and as Anna Marie was compelled to

litigate to protect her interests,[63] the award of attorney's fees and expenses of litigation
of P150,000.00 is proper.

Finally, we impose legal interest pursuant to the guidelines in  Nacar v. Gallery Frames,
[64]
 We held in that case that for interest awarded on actual and compensatory damages,
the interest rate is imposed as follows:

1. When the obligation is breached, and it consists in the payment of a sum of

money, i.e., a loan or forbearance of money, the interest due should be that which may
have been stipulated in writing. Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded; In the absence of stipulation, the rate of
interest shall be 12% per annum [changed to 6% per annum starting July 1, 2013] to be
computed from default, i.e., from extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.

xxxx

3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest x x x shall be 6% per annum frorn such finality until
its satisfaction, x x x

We note that pursuant to the Bangko Sentral ng Pilipinas-Monetary Board Circular No.
799, the legal interest rate is 6% per annum effective July 1, 2013. The new rate is
applicable prospectively; thus, the 12% per annum shall still apply until June 30, 2013.

In the present case, Anna Marie filed her complaint on August 12, 2004. PNB is
therefore liable for legal interest of 12% per annum from August 12, 2004 until June 30,
2013, and 6% per annum from July 1, 2013, until its full satisfaction.
WHEREFORE, the petition is GRANTED. The assailed December 16, 2011 decision and
June 26, 2012 resolution of the Court of Appeals is hereby reversed. The October 26,
2010 decision of the Regional Trial Court is REINSTATED with MODIFICATIONS. Thus,
the Philippine National Bank is ORDERED to pay Anna Marie Gumabon the following:

(1) Actual damages of:

(a) $10,058.01, as the outstanding balance of FXCTD No. 993902;

(b) $ 20,244.42, as the outstanding balance of FXCTD No. 993992; and

(c) P250/741.82, as the outstanding balance of SA No. 6121200;

(2)  Legal interest of twelve percent (12%) per annum of the total actual damages from
August 12, 2004 to June 30, 2013, and six percent (6%) per annum from July 1, 2013
until full satisfaction;

(3) P100,000.00 as moral damages;

(4) P50,000.00 as exemplary damages;

(5) P150,000.00 as attorney's fees; and (7) Costs of suit.

Let a copy of this Decision be furnished the Financial Consumers Protection Department
of the Bangko Sentral ng Pilipinas, for information and possible action in accordance
with the Bangko Sentral ng Pilipinas' mandate to protect the banking public.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 244255, August 26, 2020 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. XYZ,
[1]
 ACCUSED-APPELLANT.

DECISION
GESMUNDO, J.:

The Information must allege not only all the elements of the crime but also all the proper
qualifying and aggravating circumstances that would change the nature of the offense or increase the
penalty. In case of doubt in the allegations in the Information, such doubt shall be construed in favor of
the accused and against the State if only to give life to the constitutional right of the accused to be
informed of the nature and cause of the accusation against him and the presumption of innocence of
the accused.

The Case

Under consideration is this appeal directed against the Decision [2] promulgated on May 31, 2018 of the
Honorable Court of Appeals (CA) in CA-G.R. CR-HC No. 09716 whereby the appellate court affirmed with
modification the Decision[3] dated April 28, 2017 of the Regional Trial Court, [CCC], [4] Branch 51 (RTC), in
Criminal Case Nos. 2012-8309 and 2012-8310, finding XYZ (accused-appellant), guilty of two (2) counts
of qualified rape rather than penile rape.

Antecedents

The public prosecutor filed two (2) Informations against accused-appellant for allegedly raping his
daughter, the indictment reads:
Criminal Case No. 2012-8309:

That on or about noon of November 20, 2009, at [CCC], Province of Sorsogon, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there,
willfully, unlawfully and feloniously by means of force, intimidation and taking advantage of his moral
ascendancy, have sexual intercourse with one [BBB], [5] an eleven (11) years old (sic) girl, against her will
and without her consent, which act likewise constitute[s] child abuse as it debases, degrades and
demeans the dignity of the victim as a child causing her emotional and psychological trauma, to her
damage and prejudice.

The aggravating circumstance of relationship is attendant in this case, as the respondent is the natural
father of the victim, [BBB].

Criminal Case No. 2012-8310:

That on or about 8:00 o'clock in the evening of December 22, 2011 at [CCC], Province of Sorsogon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, did then and there, willfully, unlawfully and feloniously by means of force, intimidation and
taking advantage of his moral ascendancy, have sexual intercourse with one [BBB], a thirteen (13) year
old girl, against her will and without her consent, which act likewise constitute[s] child abuse as it
debases, degrades and demeans the dignity of the victim as a child causing her emotional and
psychological trauma, to her damage and prejudice.
The aggravating circumstance of relationship is attendant in this case, as the respondent is the natural
father of the victim, [BBB].[6]
Upon arraignment on May 18, 2012, accused-appellant pleaded "not guilty" to said charges.
[7]
 Thereafter, trial on the merits ensued.

To establish the prosecution's case, it presented the testimonies of private complainant and the doctor
who examined her, Dr. Salve B. Sapinoso (Dr. Sapinoso). The CA summarized their testimonies in this
wise:
The private complainant testified that she was born on [DDD], [8] 1998 and that accused-
appellant is her step-father. Her birth certificate, however, indicated accused-appellant as her father.
She claimed that accused-appellant sexually abused her several times. Specifically, on November 20,
2009, when she was eleven (11) years old, she was sleeping in their bedroom when accused-appellant
entered and removed her shirt and short. While accused-appellant was removing his clothes, he
threatened her that he will kill her mother and brother. Accused-appellant then made her lie down,
went on top of her, and inserted his penis in her vagina. Accused-appellant also kissed her and forced his
tongue into her mouth. She cried while accused-appellant covered her mouth with his hand. After
accused-appellant had carnal knowledge of her, he again warned her that he will kill her mother and
brother if she talks about the sexual abuse. The incident happened again on December 22, 2011 when
she was thirteen (13) years old.

Private complainant's testimony was corroborated by Dr. Salve Sapinoso, who conducted a physical
examination of the private complainant and issued a Medical Certificate finding five healed lacerations
in her hymen.[9] (citation omitted)
In response, the defense presented the testimony of accused-appellant. The CA summarized his
testimony in this manner:
Accused-appellant testified in his own behalf, denying that he raped private complainant and
offering as alibi that he was working in another barangay three kilometers away from their residence at
the time of the alleged incidents. He denied being the biological father of private complainant and
claimed that it was his older brother, [EEE] [10] who fathered her.[11]
Judgment of the RTC

After trial, the RTC rendered a Decision of conviction. The trial court ruled that all the elements of the
crime have been duly proven by the public prosecutor. More, there is nothing in the testimony of
private complainant that would cast doubt on its truthfulness and veracity especially when her
testimony jibes with the physical evidence and medical testimony of the medico-legal officer.
The fallo reads:
WHEREFORE, in light of the above foregoing, judgment is hereby rendered finding the accused
[XYZ] guilty beyond reasonable doubt of the offense of rape, and he is hereby sentenced to suffer the
penalty of Reclusion Perpetua in both cases.

Accused is further ordered to pay the private complainant [BBB] the amount of P75,000.00 as civil
damages and another P75,000.00 as moral damages.

SO ORDERED.[12]
 Decision of the CA

As stated above, the CA found accused-appellant guilty of qualified rape rather than penile rape because
of the presence of the relationship between him and private complainant. Further, the appellate court
ruled that accused-appellant's alibi and denial cannot be credited considering the positive identification
of private complainant that accused-appellant abused her. The CA ruled thus:
WHEREFORE, the appeal is DENIED. The Decision of the RTC is AFFIRMED with
the MODIFICATION that accused appellant [XYZ] is found GUILTY of two (2) counts of Qualified Rape
and is sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole.
The award of civil indemnity is increased to P100,000 and moral damages to P100,000, for each of the
two counts of rape. In addition, accused-appellant is further directed to pay private complainant
P100,000 as exemplary damages, for each of the two counts. The award of damages shall earn straight
interest at the rate of 6% per annum from the date of finality of the judgment until fully paid.

IT IS SO ORDERED.[13]
Hence, this appeal.

Accused-appellant and the Office of the Solicitor General (OSG) both manifested that they are
submitting the appeal for resolution on the strength of their briefs submitted before the appellate court.

The Issue

Accused-appellant raises the following assignment of errors:

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO [PRIVATE COMPLAINANT'S]
INCREDIBLE AND DUBIOUS TESTIMONY.

II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE DESPITE THE
PROSECUTION'S FAILURE TO PROVE ALL THE ELEMENTS THEREOF.

III.

THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE ACCUSED-APPELLANT'S DEFENSE OF

DENIAL.[14]
Simply, accused-appellant raises doubt as regards the credibility of private complainant. He
argues that because he disciplined private complainant often, she had the incentive to fabricate stories
against him. Also, accused-appellant argues that there was nothing in the testimony of private
complainant that shows she was ever forced or that force was employed in order to satisfy his bestial
desires. Lastly, he blames the lower courts in nonchalantly disregarding his defense. To him, when
properly considered, his defense would lead to his acquittal.

On the other hand, the OSG argues that all the elements of qualified rape were duly established by the
prosecution. More, it argues that there was nothing in the testimony of private complainant that would
cast doubt on her credibility.

Thus, the central issue in this appeal is whether or not accused-appellant is entitled to an acquittal.

The Court's Ruling

The appeal lacks merit.

First, accused-appellant's attempt to question the credibility of private complainant should be

disregarded. It must be remembered that testimonies of victims which are given in a categorical,
straightforward, spontaneous, and frank manner are considered worthy of belief, for no woman would
concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to
be perverted in a public trial if she was not motivated solely by the desire to have the culprit
apprehended and punished.[15] Also, it is highly improbable for an innocent girl of tender years like the
victim, who is very naive to the things of this world, to fabricate a charge so humiliating not only to
herself but also to her family.[16]

Further, the trial court's evaluation of the credibility of witnesses is entitled to the highest respect and
will not be disturbed on appeal considering that the trial court is in a better position to decide such
question, having heard the witnesses themselves and observed their deportment and manner of
testifying during the trial. Its findings on the issue of credibility of witnesses and the consequent findings
of fact must be given great weight and respect on appeal, unless certain facts of substance and value
have been overlooked which, if considered, might affect the result of the case. [17] Here, the fact that
accused-appellant was a disciplinarian which made private complainant despise him is not a sufficient
reason for private complainant to concoct a story of sexual abuse. More so, her testimony was
corroborated by medical evidence that there was indeed carnal knowledge.

Hence, without sufficient justification, this Court will respect the assessment of the trial court as regards
the credibility of the prosecution witnesses.

Second, despite accused-appellant's pleas, the Court affirms the lower court's treatment of his defense.
Jurisprudentially, while his alibi can be considered as a valid defense, the following elements must be
alleged and proven for it to be entitled merit: (a) that he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the
crime during its commission. "Physical impossibility refers to distance and the facility of access between
the crime scene and the location of the accused when the crime was committed. He must demonstrate
that he was so far away and could not have been physically present at the crime scene and its
immediate vicinity when the crime was committed." [18]

Here, accused-appellant alleged that he was at the other barangay approximately three (3) kilometers
away from their residence. Unfortunately, the distance between his alleged whereabouts and their
residence hardly meets the requirement of physical impossibility. At such distance, he could walk from
that barangay to their residence in a matter of hours, if not minutes. More, such statement is self-
serving, as he failed to present independent proof that would collaborate his alibi. Lastly, but most
damaging of them, private complainant had positively, unequivocally and categorically identified
accused-appellant as her abuser. Jurisprudence has dictated that positive identification prevails
over alibi since the latter can easily be fabricated and is inherently unreliable. [19] Thus, the lower courts
did not err in disregarding accused-appellant's defense.

Lastly, it must be remembered that statutory rape, as punished under Article 266-A of the Revised Penal
Code and amended by Republic Act No. 8353, paragraph 1(d), [20] is different compared to other forms of
rape. What the law punishes in statutory rape is carnal knowledge of a woman below twelve (12) years
old. Thus, force, intimidation and physical evidence of injury are not relevant considerations; the only
subject of inquiry is the age of the woman and whether carnal knowledge took place. The law presumes
that the victim does not and cannot have a will of her own on account of her tender years; the child's
consent is immaterial because of her presumed incapacity to discern good from evil. [21]

From the foregoing, the prosecution needs only to establish the following facts in order to secure
conviction of the accused for statutory rape: (1) that the accused had carnal knowledge of a woman; and
(2) that the woman was below 12 years of age. [22]

Thus, in Criminal Case No. 2012-8309, the prosecution has sufficiently established all the elements
stated above. The unlawful carnal knowledge was established by the testimony of private complainant
who described how accused-appellant undressed himself, threatened her mother and brother with
bodily harm if she refused, climbed on top of her and abused her. Such sexual abuse was corroborated
by the medico-legal who testified that accused-appellant showed healed lacerations in her private parts.
Also, the prosecution was able to present private complainant's birth certificate that shows that she was
merely eleven (11) years old at the time of the abuse. From the foregoing, it is undisputable that
accused-appellant's guilt for statutory rape had been established.

As for Criminal Case No. 2012-8310, the Information alleges that at the time of the commission of the
crime, private complainant was already thirteen (13) years old and, therefore, outside the definition of
statutory rape. Be that as it may, the Information was sufficient to charge accused-appellant with rape
as defined under Article 266-A, paragraph 1(a). From the foregoing, the following are the elements of
the offense: (a) the offender had carnal knowledge of a woman; and (b) he accomplished this act under
the circumstances mentioned in the provision, e.g., through force, threat or intimidation. The gravamen
of rape is sexual intercourse with a woman against her will. [23]

Contrary to accused-appellant's contention, all the elements for violation of Article 266-A, paragraph
1(a) are present. First, the testimony of private complainant recounts the harrowing tale when accused-
appellant sexually abused her when she was thirteen (13) years old. The injuries she suffered were
corroborated with medical evidence. Secondly, from the testimony of private complainant, she was
obviously threatened into submission to his bestial desires when accused-appellant threatened to harm
her mother and brother if she did not succumb to him. It is clear, therefore, that on the basis of the
Informations filed, accused-appellant deserves his convictions for two (2) counts of rape, one (1)
statutory rape under Article 266-A, paragraph 1(d) and another penile rape under Article 266-A,
paragraph 1(a).
Despite this, the Court in unable to give its imprimatur to the CA's ruling that accused-appellant should
be found guilty for qualified rape.

The Court now explains.

Jurisprudence has been clear in laying down the elements of qualified rape, especially incestuous rape.
These elements are: (a) the victim is a female over 12 years but under 18 years of age; (b) the offender is
a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim; and (c) the offender has carnal
knowledge of the victim either through force, threat, or intimidation. [24]

In relation to these elements, the Rules of Court require that the elements of the crime as well as the
qualifying and aggravating circumstances must be alleged in the Information. [25] The rules require the
qualifying circumstances to be specifically alleged in the Information in order to comply with the
constitutional right of the accused to be properly informed of the nature and cause of the accusation
against him. The purpose is to allow the accused to prepare fully for his defense to prevent surprises
during the trial.[26]

Lastly, qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded
but proved, they shall be considered only as aggravating circumstances since the latter admit of proof
even if not pleaded. It would be a denial of the right of the accused to be informed of the charges
against him and consequently, a denial of due process, if he is charged with simple rape and convicted of
its qualified form, although the attendant circumstance qualifying the offense and resulting in the capital
punishment was not alleged in the indictment on which he was arraigned. [27]

Here, the allegations involving the qualifying circumstances of relationship in the Informations similarly
read:
"The aggravating circumstance of relationship is attendant in this case, as the respondent is the
natural father of the victim, BBB."
While the age of the victim was alleged and proven with the presentation of private
complainant's birth certificate, the qualifying circumstance of relationship, however, was not properly
alleged and unproven or, at the very least, not proven by sufficient evidence.

In finding accused-appellant guilty of qualified rape, the CA ruled:

The Court, however, finds that the RTC failed to consider the qualifying circumstance of private
complainant's minority and her relationship to accused-appellant in disposing of the case. Under Article
266-B of the RPC, the crime of Rape is qualified when the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity and affinity within
the third civil degree, or the common law spouse of the parent of the victim.

Here, the articles of Information expressly alleged that private complainant was a minor when the
crimes were committed and that accused-appellant is her father. These are duly established by the
private complainant's birth certificate which indicates her birth date and bears accused-appellant's
name as her father. Accused-appellant's assertion that he is not the private complainant's biological
father could not overcome the presumption of regularity in the preparation of said certificate.
Nonetheless, even assuming that he is not the private complainant's biological father, the conclusion
would still be the same. Accused-appellant is married to private complainant's mother. This would make
accused-appellant the private complainant's stepfather, a relationship that is still covered by Article 266-
B of the RPC.[28]
The Court disagrees with the appellate court.

To begin with, although the Court respects the factual findings of the trial courts, it is equally axiomatic
that appeal in criminal cases opens the whole case wide open for review. [29] As such, the Court can
review the evidence presented by the prosecution and whether the same is sufficient to warrant a
conviction for a qualified offense.

The Information alleged that accused-appellant was the "natural father" of private complainant. As
such, the Information seems to claim that accused-appellant is the biological father of private
complainant. This was supported by private complainant's birth certificate which names accused-
appellant as the father.

In response, accused-appellant denied parentage over private complainant and alleged that it was his
older brother who fathered her. For the Court, the CA was too quick in dismissing accused-appellant's
allegations considering that private complainant herself admitted this fact; that accused-appellant is not
her biological father despite what was stated in the birth certificate. This is a judicial admission that does
not require proof. Interestingly, neither did the prosecution explain that such admission was made
through palpable mistake or no such admission was made. [30] As such, accused-appellant's claim was not
an uncorroborated allegation but was a conceded fact.

Of course the CA would lean on the presumption of regularity of government functions to protect the
entries in the birth certificate. However, such argument is based solely on a rebuttable presumption that
can be overturned by evidence. The praesumptio iuris tantum of the entries in the birth certificate is
reflected in the rules, thus:
Public documents as evidence. — Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other
public documents are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter. [31]
Hence, the entry in the birth certificate that accused-appellant was the father of private
complainant is not conclusive and evidence may be presented to disprove the same. The evidence here
came in the form of a judicial admission which conclusively binds the party making it. He cannot
thereafter take a position contradictory to, or inconsistent with his pleadings. Acts or facts admitted do
not require proof and cannot be contradicted unless it is shown that the admission was made through
palpable mistake or that no such admission was made. [32] Therefore, there was no evidence that, indeed,
accused-appellant is the father of the private complainant.

In its effort to sustain the qualified rape charge, the CA argues that even if it is true that accused-
appellant is not the father of private complainant, he is nevertheless married to the private
complainant's mother making him the step-father of private complainant which is one of the filial
relationships enumerated under Article 266-B, qualifying the offense.

Again, the Court disagrees.

First, the Information filed against the accused contain all the allegations that needed to be proven. The
prosecution cannot go beyond what is alleged in the same. Here, the allegation did not state the correct
filial relationship between accused-appellant and private complainant. Instead of alleging that accused-
appellant was the step-father of private complainant, it erroneously relied on private complainant's
birth certificate that stated that accused-appellant was her father.

Secondly, even if the proper relationship was alleged, the fact of marriage must be proven through the
marriage certificate of accused-appellant and the victim's mother. However, despite the Court's effort to
look for such evidence, the search was in vain. The same was not submitted into evidence.

Lastly, the Court cannot consider the allegation of "natural father" as to include step-father. It is a basic
rule in statutory construction that penal statutes are construed against the State and in favor of the
accused.[33] The reason for this principle is the tenderness of the law for the rights of individuals and the
object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of
the court limited.[34] Also, the purpose of strict construction is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts. [35] Moreover, the
relationship was also expressly included in the enumeration in Article 266-B. Therefore, step-father
cannot be implied from the term "father".

In People v. Alcoreza,[36] the Court refused to convict the accused for qualified rape due to the erroneous
allegation in the Information regarding the relationship between the accused and the victim, thus:
Be that as it may, the accused can be convicted only of simple statutory rape and, accordingly,
the penalty of death imposed against him should be reduced to reclusion perpetua. The Information
alleged that the appellant raped his 11-year old stepdaughter Mary Joy. The qualifying circumstance of
minority of Mary Joy was proved beyond reasonable doubt by the presentation of her birth certificate.
However, the relationship between the appellant and Mary Joy was not established with the same
degree of proof. Although the prosecution established that Mary Joy was the daughter of Melita, it
failed to offer the marriage contract of the appellant and Melita which would establish that Mary Joy is
the stepdaughter of the appellant. The testimony of Melita and even the admission of the appellant
regarding their marriage do not meet the required standard of proof. The Court cannot rely on the
disputable presumption that when a man and a woman live together as husband and wife, they are
presumed to be married. Relationship as a qualifying circumstance in rape mutt not only be alleged
clearly. It must also be proved beyond reasonable doubt, just as the crime itself. Neither can it be argued
that without the marriage contract, a common-law relationship between the appellant and Melita was
still proved and this should qualify the crime at bar. To be sure, what the Information alleged is that the
appellant is the stepfather of Mary Joy. It made no mention of a common-law relationship between the
appellant and Melita. Hence, to convict appellant with qualified rape on the basis of the common-law
relationship is to violate his right to be properly informed of the accusation against him. [37] (citations
omitted)
 Hence, the Court can only find accused-appellant guilty of two (2) counts of rape. The Court's
refusal to qualify the charge, however, does not lessen its condemnation of the acts accused-appellant
committed against private complainant. The Court's refusal stems rather from its solemn duty to protect
the Constitution and the constitutional rights of individuals.

WHEREFORE, the Court DISMISSES the appeal; AFFIRMS with

MODIFICATION the Decision promulgated on May 31, 2018 of the Honorable Court of Appeals in CA-
G.R. CR-HC No. 09716; FINDS

accused-appellant XYZ GUILTY of two (2) counts of rape in Criminal Case Nos. 2012-8309 and 2012-
8310; IMPOSES the penalty of reclusion perpetua for each count of rape; and ORDERS him to PAY the
amounts of P75,000.00 for civil indemnity, P75,000.00 for moral damages, P75,000.00 for exemplary
damages for each count of rape, and six percent (6%) interest imposed on all monetary awards reckoned
from finality of this Judgment until full payment. [38]

SO ORDERED.