October 31, 1939 G.R. No. 46310THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MARCIANO GONZALES, defendant-appellant. Eduvigio E.

Antona for appellant.Office of the Solicitor-General Ozaeta and Assistant Attorney Zulueta for appellee. Concepcion (Pedro), J.: Marciano Gonzales appealed from the judgment of the Court of First Instance of Tayabas which found him guilty of parricied and sentenced him to reclusion perpetua with the accessories of the law, to indemnify the heirs of the deceased, Sixta Quilason, in the amount of P1,000, and to pay the costs. At the trial, the appellant testified that at midday on June 2, 1938, on returning to his house from the woods, he surprised his wife, Sixta Quilason, and Isabelo Evangelio in the act, told her that the man was the very one who used to ask rice and food from them, and counseled her not to repeat the same faithlessness. His wife, promised him not to do the act again. Thereafter the accused continued testifying he left the house and went towards the South to see his carabaos. Upon returning to his house at above five oclock in the afternoon, and not finding his wife there, he looked for her and found her with Isabelo near the toilet of his house in a place covered with underbush, who was standing and buttoning his drawers, immediately took to his heels. The accused went after him, but unable to overtake him, he returned to where his wife was and, completely obfuscated, attacked her with a knife without intending to kill her. Thereafter, he took pity on her and took her dead body to his house. The appellant contends that, having surprised his wife, in the afternoon of the date in question, under circumstances indicative that she had carnal intercourse with Isabelo, he was entitled to the privilege afforded by article 247 of the Revised Penal code providing: Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill either of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. (Emphasis ours.) We do not believe that the accused can avail himself of the aforesaid article, because the privilege there granted is conditioned on the requirement that the spouse surprise the husband or the wife in the act of committing sexual intercourse with another person; the accused did not surprise his wife in the very act or carnal intercourse, but after the act, if any such there was, because from the fact that she was rising up and the man was buttoning his drawers, it does not necessarily follow that a man and a woman had committed the carnal act. We cannot, therefore, entirely accept the defense sought to be established by the accused, first, because his testimony is improbable. It is not conceivable that the accused had only mildly counseled his wife not to repeat committing adultery with Isabelo, instead of taking harsher measures as is natural in such circumstances, if the were true that he had surprised the two offender in the act of adultery on returning to his house at midday on the date in question. Neither is it likely that a woman thirty years of age, like Sixta Quilason, and twenty-five-year old Isabelo Evangelio, both of sound judgment as is to be supposed, had dared to have carnal intercourse near the toilet of the offended party house, a place which is naturally frequented by some persons. The circumstance that the place was covered by weeds, does not authorize the conclusion that the offenders could lay concealed under the weeds because the latter do not usually grow to such height as to conceal or cover two persons committing the guilt act. It seems that under the circumstances it is unnatural that they would execute the act in a place uncovered and open. We do not want to suppose that the sexual passion of two persons would border on madness. Secondly, because even assuming that the accused caught his wife rising up and Isabelo cannot invoke the privilege of article 247 of the Revised Penal Code, because he did not surprise the supposed offenders in the very act of committing adultery, but thereafter, if the respective positions of the woman and the man were sufficient to warrant the conclusion that they had committed the carnal act. (3 Viada, Penal Code, p. 96; People vs. Marquez, 53 Phil. 260). Taking into account the mitigating circumstances of lack of intention on the part of the accused to commit so grave a wrong as that committed upon the person of the deceased, and of his lack of instruction, the appealed judgment is modified, and the accused is sentenced to the penalty of twelve years and one day to twenty years of reclusion temporal and indemnify the heirs of the deceased in the amount of P1,000 with the costs. So ordered. Villa-Real and Diaz, JJ., concur.Avancea, C.J., concurs.Moran, J., concurs.Imperial, J., dissents.Laurel, J., dissents.

G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FRANCISCO ABARCA, accused-appellant. SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2

On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3 xxx xxx xxx The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation

of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under

the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellantarresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED.

EN BANC [G.R. No. 133917. February 19, 2001]PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NASARIO MOLINA y MANAMAT @ BOBONG and GREGORIO MULA y MALAGURA @ BOBOY,accused-appellants.

DECISION YNARES-SANTIAGO, J.:

To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.[1] For automatic review is the Decision[2] of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias Bobong and Gregorio Mula y Malagura alias Boboy, guilty beyond reasonable doubt of violation of Section 8,[3] of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,[4] and sentencing them to suffer the supreme penalty of death. The information against accused-appellants reads: That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grams of dried marijuana which are prohibited. CONTRARY TO LAW.[5] Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.[6] Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses. The antecedent facts are as follows: Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City.[7] The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused-appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.[8] At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma-a, Davao City any time that morning.[9] Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.[10]

At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a trisikad carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their vehicle and overtook the trisikad.[11] SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.[12] The police officers then ordered the trisikad to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag.[13] Molina replied, Boss, if possible we will settle this.[14] SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter, accused-appellants Mula and Molina were handcuffed by the police officers.[15] On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.[16] The demurrer was denied by the trial court.[17] A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum. On April 25, 1997, the trial court rendered the assailed decision,[18] the decretal portion of which reads: WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659. The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be. SO ORDERED.[19] Pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend: I. THAT THE MARIJUANA IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; II. THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND III. THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.[20] The Solicitor General filed a Manifestation and Motion (In Lieu of Brief), wherein he prayed for the acquittal of both accused-appellants. The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[21] Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.[22] Thus:

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Courts high regard as a freedom implicit in the concept of ordered liberty.[23] The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;[24] and (6) stop and frisk situations (Terry search).[25] The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.[26] As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without 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 (arrest in flagrante delicto); (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 (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a 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 (arrest of escaped prisoners).[27] In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accusedappellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.[28] This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement. In People v. Chua Ho San,[29] the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,[30] probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. As applied to in flagrante delicto arrests, it is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,[31] it was held that the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. Likewise, in People v. Mengote,[32] the Court did not consider eyes... darting from side to side ... *while+ holding ... *ones+ abdomen, in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, *b+y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in [the arresting officers+ presence. So also, in People v. Encinada,[33] the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs. Then, too, in Malacat v. Court of Appeals,[34] the trial court concluded that petitioner was attempting to commit a crime as he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them.[35] In declaring the warrantless arrest therein illegal, the Court said: Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.[36] It went on to state that Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner

and were not creating any commotion or trouble... Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.[37] Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) 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 (2) such overt act is done in the presence or within the view of the arresting officer.[38] In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded Boss, if possible we will settle this to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the suspicion of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accusedappellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise. While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mulas name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest. This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit Q- When you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person? ABecause I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina[39]

The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants name and address prior to the arrest. Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants identity, and were, from all indications, merely fishing for evidence at the time of the arrest. Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latters illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that *t+he prosecutions evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances.[40] Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.[41] Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-appellants. While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias Bobong and Gregorio Mula y Malagura alias Boboy, are ACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs. SO ORDERED. SECOND DIVISION

[G.R. No. 112092. March 1, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT NUEZ y LAGASCA, accusedappellant.

DECISION QUISUMBING, J.:

On appeal is the decision[1] dated May 26, 1993, of the Regional Trial Court of Urdaneta, Pangasinan, Branch 48, convicting appellant of the crime of qualified illegal possession of firearms, sentencing him to life imprisonment, and ordering him to pay the costs. The facts are as follows: On March 6, 1992, at around 2:00 to 3:00 P.M., in Palina Sur, Urdaneta, Pangasinan, four (4) persons, namely Teofilo Pacquing, Calixto Pacorza,[2] Marlito Parias and Roy Tolentino were riding a tricycle driven by Jerry Almendrez.[3] When they passed by the gate of appellants family compound, appellant fired at them from a distance of about twenty (20) meters, hitting Pacquing on the right toe, Almendrez on the left breast, and Pacorza resulting to his death. The records do not indicate the injuries sustained by Pacorza, but merely state that he died as a result of the shooting incident.[4] The victims were brought to the Urdaneta Sacred Heart Hospital for treatment. Teofilo Pacquing[5] reported the incident to the police. SPO1 Ernesto C. Gancea, a member of the Investigation and Intelligence Operations of the Philippine National Police (PNP) investigated the incident. Teofilo Pacquing informed him that it was appellant who fired at them. Thereafter, SPO1 Gancea, accompanied by PO3 Asterio Dismaya, and SPO1 Henry R. Kang proceeded to the scene of the incident. When they arrived at appellants house, SPO1 Gancea talked to appellant who readily admitted that he was the one who shot Pacorza. SPO1 Kang recovered a caliber .22, long rifle, Squibman, model 116 MK with serial no. A-320554 with telescope from appellant. When asked for the permit for the firearm, appellant could not produce any. Appellant was thereafter brought to the Urdaneta Police Station for investigation. He refused to give any statement to the police. The incident was entered in the police blotter by desk officer Romulo Dutong.[6] For the shooting of Almendrez and Pacquing and the death of Pacorza, appellant was charged under four (4) separate Informations for (1) homicide, (2) frustrated homicide, (3) frustrated homicide and (4) illegal possession of firearms docketed as Criminal Case No. U-6449. The cases were raffled to the different branches. Only the Illegal Possession of Firearms case is before us. The Information for Illegal Possession of Firearms reads:[7] That on or about the 6th day of March, 1992, at barangay Palina Sur, municipality of Urdaneta, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody one (1) Caliber .22 Rifle 116MK, bearing Serial No. A320554, with trademark Kassnar Squibman and with magazine and nine (9) live ammunitions, without first securing the necessary permit or license from lawful authorities, which said firearm was used by the accused in the commission of the crime of homicide and double frustrated homicide against the persons of Calixto Pacursa (sic), Jerry Armendez (sic) and Teofilo Pacquing. CONTRARY to Presidential Decree No. 1866. Urdaneta, Pangasinan, June 16, 1992. On September 10, 1992, upon arraignment, appellant, duly assisted by counsel de parte, pleaded not guilty.[8] Pre-trial conference was waived. Trial then commenced. The prosecution presented the four (4) members of the PNP, Urdaneta, Pangasinan, who were involved in the investigation,

and one of the victims, Teofilo Pacquing. SPO1 Ernesto C. Gancea testified that he conducted the investigation and that appellant admitted to him that he shot the victim, Pacorza.[9] PO2 Asterio Dismaya, corroborated the testimony of SPO1 Gancea.[10] SPO1 Henry R. Kang, testified that he was the one who recovered the firearm from appellant.[11] SPO1 Nestor G. Manongsong, responding to a subpoena duces tecum, testified that he could not bring the police blotter, but presented the complaint/assignment sheet,[12] and the spot report[13] pertaining to the incident.[14] Teofilo Pacquing testified on the circumstances surrounding the attack, and identified appellant as the assailant.[15] On the other hand, the defense presented five (5) witnesses, namely: (1) appellant, (2) Salvador Paz, a carpenter working in the house of Alvaro Nuez; (3) Eugene Nuez, a neighbor of the aunt of appellant who allegedly witnessed the shooting incident; (4) Cesar Nuez Celeste, a cousin of appellant and the owner of the subject firearm and (5) SPO4 Benito Opguar, of the Provincial Headquarters, PNP Command, Lingayen, Pangasinan, who testified that Cesar Celeste had a temporary license to possess the subject firearm, but at the time of the shooting incident, the temporary license had already lapsed.[16] The defense claims that the shooting incident did not happen on the road, but inside the living room of the house of appellants aunt, Magdalena Celeste. Appellant claims that he shot at the victims in self-defense. He narrates his version of the incident as follows:[17] That on March 6, 1992, the accused-appellant was busy sticking tobacco leaves when six (6) armed men namely: Calixto Pacursa, Gerry Almendrez, Teofilo Tolentino, Teofilo Pacquing, Nick Gascon and Carlito Parnas, arrived in their compound and went inside their compound and stoned the houses of his grandmother, Maxima Nuez, his uncle Mariano Nuez and his aunt Magdalena Celeste. When the six (6) men noticed him, they shouted at him so the accused-appellant ran towards the north and since they ran after him, the accused-appellant hid behind the santol tree, then the six men left the place boarding on the same tricycle and proceeded towards the west. In the afternoon between 3:00 and 4:00 oclock of the same date, while he is unloading tobacco leaves, Gerry Almendrez and his companions came back and they shouted at him and he heard one gunshot so he ran inside the compound where his grandfathers house were being constructed and that was then the time that Cesar Celeste and Juanito Nuez went to town to report the said incident. Calixto Pacursa armed with a .38 caliber met the accused-appellant so he ran towards the house of his aunt Magdalena Celeste and hide (sic) inside the bathroom since Calixto Pacursa continued chasing him. When Calixto Pacursa was about to go the second floor, he saw the .22 caliber that was placed on top of the bed of Cesar Celeste and he got the said firearm and when he went out he was still holding the .38 caliber and at the same time holding the .22 caliber firearm. When the accused-appellant saw Calixto Pacurza tucked his .38 caliber firearm in his waist and loaded the .22 caliber rifle that was the time accused-appellant went out from the bathroom and grappled with Calixto Pacurza and the accused-appellant was able to retrieve the subject firearm from Calixto Pacurza. The accused-appellant move two steps backward but Calixto Pacurza drew his .38 caliber firearm from his waist and that was the time that accused-appellant fired the .22 caliber rifle at Calixto Pacurza. The accused-appellant and Gerry Almendrez had a misunderstanding because the former noticed that some parts of the motorcycle driven by the latter had been replaced. The testimony of herein accused-appellant were corroborated by Salvador Paz, a laborer in the on-going construction of the house of Alvaro Nuez, and Eugene Nuez, who at that time were inside the kitchen of Magdalena Celeste, the former was pouring hot water in a thermos while the latter went inside the kitchen to light his cigarette. Cesar Celeste declared that he is the owner of the subject firearm and he brought outside the said firearm when Teofilo Pacquing and his companions arrived and stoned the houses in their compound. And before he and Juanito Nuez went to town to report to the police authorities, he left the licensed firearm on top of his bed. He applied a license to possess the firearm through First Continental Co., Inc., and had paid the firearm bond. After presentation of prosecution evidence in the illegal possession case, appellant filed a motion for consolidation of the four cases. Upon the opposition of the public prosecutor, the trial court denied the motion.[18]Subsequently, on May 26, 1993, the trial court rendered a decision[19] convicting appellant, the dispositive portion of which provides: WHEREFORE, this court finds the accused guilty of Illegal possession of firearm resulting to the death of the victim and pursuant to P.D. 1866 in relation to the 1987 Constitution the court sentences the said accused Robert Nuez to suffer the penalty of life imprisonment and with costs. SO ORDERED.[20] Appellant now assigns the following errors:[21] I. THE LOWER COURT GRAVELY ERRED IN FINDING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM DESPITE THE FACT THAT THE SAME WAS NOT RECOVERED FROM HIS POSSESSION AS TESTIFIED TO ON REBUTTAL BY PROSECUTION WITNESS PO3 HENRY KANG.

II.

THE LOWER COURT GRAVELY ERRED IN GIVING GREAT WEIGHT TO THE INCONSISTENT AND UNCORROBORATED TESTIMONIES OF THE PROSECUTION WITNESSES AND IN NOT GIVING CREDENCE TO THE CORROBORATED AND CREDIBLE TESTIMONIES OF THE DEFENSE WITNESSES.

III. THE LOWER COURT GRAVELY ERRED IN SHIFTING THE BURDEN OF PROOF TO THE ACCUSED APPELLANT. IV. THE LOWER COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE ALLEGED EXTRAJUDICIAL CONFESSION OF THE ACCUSED-APPELLANT WITHOUT THE ASSISTANCE OF A COUNSEL AND IN ADMITTING THE FIREARM IN ISSUE WHICH WAS SEARCHED AND SEIZED WITHOUT A VALID WARRANT. In support of his first and second assignment of errors, appellant points out major inconsistencies in the testimonies of the prosecution witnesses. SPO1 Gancea testified that appellant was inside his house when the police arrived at the crime scene and the rifle was located beside appellant, and it was SPO1 Kang who got the rifle from appellant. SPO3 Dismaya, however, testified that appellant was actually in the yard when they arrived and that appellant was the one who got the rifle from the house and handed it to SPO2 Kang. SPO2 Kang testified during direct examination that it was appellant who gave him the gun, but during rebuttal, he said that it was one of appellants cousins who handed to him the gun. In support of his third assignment of error, appellant claims that it was error for the trial court to shift the burden of proof to the defense when he invoked self-defense. In support of his fourth assignment of error, appellant contends that his alleged extra-judicial confession to SPO1 Gancea is inadmissible since he was not assisted by counsel at the time it was made. Further, the rifle was seized without a search warrant and therefore, inadmissible in evidence. The Office of the Solicitor General, on the other hand, points out that it is of no moment who among the responding policemen received the fatal weapon. What is important is that he admitted possession of the firearm at the time the victim was shot. His conviction was based not on his alleged extrajudicial confession, but on his admissions in open court. The rifle was not seized from appellant, but was surrendered by him to the policemen. Simply put, the issues pertain to (1) the assessment of credibility of witnesses, and (2) the sufficiency of the evidence to convict appellant of the crime charged. It is well-settled that, generally, appellate courts will not interfere with the judgment of trial courts in passing upon the credibility of the witnesses unless there appears in the record some facts or circumstances of weight and significance which the trial court has overlooked or the significance of which it has misapprehended or misinterpreted.[22] After a careful examination of the records of the case, we are inclined to give credence to the version of the prosecution. The alleged inconsistencies as to who recovered the firearm from appellant, in our view, do not pertain to a material matter. What is important is that one of the police officers recovered the firearm from appellant, who does not deny his possession of said firearm. Further, the presumption of regularity in the performance of official functions, insofar as the policemen are concerned, has not been overturned. Credence should be given to the narration of an incident by prosecution witnesses who are police officers and presumed to have performed their duties in a regular manner, in the absence of evidence to the contrary.[23] Anent the second issue, we have held that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.[24] The prosecution was able to prove both elements. First, prosecution witness Pacquing categorically stated that he saw appellant fire at them with a long gun from a distance of 20 meters.[25] Appellant would make us believe that his possession of the firearm was transient possession. He claims that he merely acquired it during the scuffle with the victim. Having given credence to the version presented by the prosecution, this argument deserves scant consideration. Second, the defense presented SPO4 Opguar, who testified that a temporary license of the rifle was issued in the name of Cesar Celeste, the owner thereof, but said license already lapsed. Clearly, appellant had no license to possess the rifle. Appellant was convicted of illegal possession of firearms resulting to the death of the victim. At the time of the commission of the crime, the existing jurisprudence was People v. Quijada.[26] This Court held then that the use of an unlicensed firearm in a killing results in two separate crimes - one for the aggravated form of illegal possession of firearm and two, for homicide or murder. In the meantime, however, Congress passed Republic Act No. 8294,[27] which lowered the penalties for illegal possession of firearms. Further, Section 1, third par. of R.A. No. 8294 provides If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Thus in People v. Molina, 292 SCRA 742 (1998), this Court held that the use of an unlicensed weapon in the commission of homicide or murder should now be considered simply as an aggravating circumstance and no longer a separate offense. The Molina ruling,[28] however, is not applicable to the present case. In Molina, separate Informations for murder, frustrated murder and illegal possessions were filed, but the cases were eventually consolidated and jointly tried and decided. In the present case, there were four cases filed against appellant which were all separately tried.[29] Hence, the evidence as to the

homicide and frustrated homicide cases were neither adopted nor presented before the trial court trying the illegal possession case. For this reason, there is a dearth of evidence on record to support the finding of homicide and/or frustrated homicide. Accordingly, appellant should only be convicted of simple illegal possession of firearms. The lowered penalties as provided in R.A. No. 8294, being favorable to the accused, should be applied retroactively.[30] Under R.A. No. 8294, the penalty for simple illegal possession of a low-powered firearm is prision correccional in its maximum period, which is four (4) years, two (2) months and one (1) day to six (6) years, and a fine of not less than P15,000.00. It will not be amiss to point out that R.A. No. 8294 contains the proviso: Provided, That no other crime was committed. However, as explained earlier, the facts obtaining in this case do not indubitably prove the frustrated murder cases or the murder case in relation to the illegal possession case. Hence, we find it proper to convict appellant only of the crime of simple illegal possession of firearms. Applying the Indeterminate Sentence Law, appellant should be sentenced to two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum, to five (5) years, four (4) months, and twenty (20) days of prision correccionalmaximum as maximum, and ordered to pay a fine of P15,000.00.[31] WHEREFORE, the decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 48, in Criminal Case No. U-6449, is hereby AFFIRMED WITH MODIFICATIONS. Appellant is hereby convicted of the crime of illegal possession of firearms and sentenced to two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum, to five (5) years, four (4) months, and twenty (20) days of prision correccional maximum as maximum, and ordered to pay a fine of P15,000.00 and the costs. SO ORDERED.

[G.R. No. 137250-51. September 13, 2001]

PABLO MARGAREJO, MARTIN PAGADUAN, BERNARD ZAMBALES, VICTOR DULAP, and LOLITO ALMOITE, petitioner, vs. HON. ADELARDO ESCOSES, in his capacity as Presiding Judge of Branch 51, RTC, Puerto Princesa City and PEOPLE OF THE PHILIPPINES, respondent. DECISION BUENA, J.:

This is a Petition for Certiorari under Rule 65 seeking to annul, on the ground of grave abuse of discretion, the following: 1) The Order dated September 30, 1998, issued by Judge Adelardo S. Escoses, Branch 51, Regional Trial Court of Puerto Princesa City, in (a) CRIMINAL CASE NO. 14353 for Violation of Presidential Decree No. 1866, as amended; and in (b) CRIMINAL CASE NO. 14354 for Violation of COMELEC Resolution No. 3045 in relation to section 261 of the Omnibus Election Code; denying the petitioners motions to quash the informations in the above cases;[1] and 2) The Resolution dated November 20, 1998, issued by respondent judge, denying petitioners motion for reconsideration of the said order.[2] The antecedents, as found by the Solicitor General, read: 1. At about four oclock in the morning of May 12, 1998, Police Superintendent Feliciano C. Dimayuga, Sr., the Chief of Police of Puerto Princesa City, together with his Deputy Chief of Police, Police Chief Inspector Miguel B. Oceo, and four other policemen, namely, Police Senior Inspector Leopoldo M. Pacaldo, PO3 Jose B. Eleazar, PO3 Joselito R. Golifardo, and PO3 Edwin A. Barona, who were manning a COMELEC checkpoint at Barangay Sta. Lourdes at Puerto Princesa City, were able to intercept two vehicles, specifically, a Tamaraw FX vehicle, with Plate Number SDT-389 and driven by petitioner Martin Pagaduan, and a Toyota Hi-Lux Vehicle which did not have a plate number and was driven by retired Colonel Romualdo Ragel of Barangay Tinguiban, Puerto Princesa City. 2. Several firearms, with live ammunition, were seen and found in plain view inside the Toyota Hi-Lux Vehicle. Also seen in plain view were several firearms, with live ammunition, carried by petitioners and by the other passengers of said intercepted vehicle. Police Superintendent Dimayuga inquired from petitioners if they had the required licenses and the proper COMELEC authority for the firearms found in their possession and custody but petitioners could not produce any. Said firearms, together with live ammunition, were thus taken by the police and the corresponding receipts issued therefor. Petitioners and three others were charged with the earlier mentioned crimes under two separate informations, thus: CRIMINAL CASE NO. 14353

That on or about the 12th day of May, 1998, more or less 4:00 oclock (sic) in the morning, at Bgy. Sta. Lourdes, Puerto Princesa City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, did then and there wilfully, unlawfully and feloniously have in their possession, custody, and control, the following firearms and ammunitions, to wit: 1) One (1) piece Uzi Machine Pistol with Serial No. SN-70102 with Three (3) magazines loaded with Sixty Five (65) live ammunitions 2) One (1) piece Para-Ordinance Caliber .45 Pistol with Serial No. 451529 with Ten (10) live ammunitions in Magazine 3) One (1) piece Colt Mark IV Gold Cup .45 Pistol with Serial No. 369470 with Six (6) live ammunitions in Magazine 4) One (1) piece Norinco .45 Caliber Pistol with Serial No. 704800 with Seven (7) live ammunitions in Magazine 5) One (1) piece .45 Caliber Pistol with Serial No. 957202 (w/o brand name) with Five (5) live ammunitions in Magazine 6) One (1) piece .357 Magnum Revolver Smith and Wesson with Serial No. SN-AJS-7876 with Twenty (20) live ammos 7) One (1) piece M16 Baby Armalite Rifle with Serial Number SN 145710 8) Ten (10) pieces M16 magazines loaded with 262 rounds of live ammunitions, without first securing the necessary permits/licenses to possess the same from the proper authorities concerned. CONTRARY TO LAW.[3] and, CRIMINAL CASE NO. 14354 That on or about the 12th day of May, 1998, more or less 4:00 oclock in the morning, at Bgy. Sta. Lourdes, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together did then and there wilfully, unlawfully and feloniously have in their possession, custody and control during election period the following firearms and ammunitions, to wit: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. One (1) pc. UZI Machine Pistol with SN 70102 Three (3) pcs. UZI magazine Sixty Five (65) pcs. UZI live ammos. One (1) pc. 45 cal. Pistol with five (5) live ammos. in magazine One (1) pc. COLT MARK IV .45 cal. Pistol SN 369470 with six (6) live ammos. in magazine One (1) pc. NORINCO .45 caliber pistol SN 704800 with seven (7) live ammos. in magazine One (1) pc. .45 cal. Pistol SN 451529 with ten (10) live ammos. in magazine One (1) pc. .357 Magnum revolver SN-AJS-7876 with twenty (20) live ammos. One (1) pc. M16A1 Baby Armalite Rifle with SN-145710 Ten (10) pcs. Magazine for M16 Rifle Two Hundred Sixty Two (262) pc. Live ammos. for M16 Rifle.

without first securing the written permit from the COMELEC to possess the same, which act is in violation of COMELEC Resolution No. 3064 in relation to Section 261 of the Omnibus Election Code. CONTRARY TO LAW.[4] Before arraignment, motions to quash the aforequoted informations were filed by petitioners. In the motion to quash filed in Criminal Case No. 14353, petitioners asserted that, the facts charged in the Information did not constitute an offense, there

being no allegation that `no other crime was committed, which is an essential element of the offense penalized by PD 1866, as amended by RA 8294.[5] And in the motion to quash filed in Criminal Case No. 14354, petitioners claimed that, " the City Prosecutor had no authority to file the information in said case since COMELEC, which has the exclusive authority to investigate and prosecute election offenses, was conducting its own preliminary investigation for the same act complained of.[6] As stated in the prefatory statement, the motions to quash were denied in the order dated September 30, 1998: WHEREFORE, premised on the foregoing jurisprudential tenets and rational application thereof to the facts of the instant case, the motion to quash the above-entitled cases is hereby denied. Let the accused be arraigned on the two Informations at bench at the earliest available calendar of the court.[7] The motion for reconsideration of the aforequoted order was likewise denied in the resolution dated November 20, 1998: WHEREFORE, premised on the foregoing doctrinal tenets applied to the facts as culled from the records of these cases, the formal joint and consolidated motion for reconsideration of the September 30, 1998 order of this Court is hereby denied. Let the arraignment of the accused on the Informations at bench be set at the earliest available calendar of the court.[8] The issues raised by petitioners in their Memorandum are as follows: ISSUES WHETHER OR NOT THE NON-COMMISSION OF ANOTHER CRIME IS AN ESSENTIAL ELEMENT OF VIOLATION OF PD 1866 AS AMENDED BY RA 8294, WHICH ELEMENT MUST BE ALLEGED IN THE INFORMATION. WHETHER OR NOT THE PENDENCY OF A PRELIMINARY INVESTIGATION CONDUCTED BY THE COMELEC INVOLVING THE SAME ACT OF PETITIONERS DEPRIVED THE CITY PROSECUTOR OF THE AUTHORITY TO FILE THE INFORMATION. WHETHER OR NOT THE WARRANTLESS SEARCH WHICH SUPPOSEDLY RESULTED IN THE DISCOVERY AND SEIZURE OF FIREARMS FROM PETITIONERS IS LEGAL. The first issue is resolved against the Petitioners. Their principal argument in support of this issue is not only amiss but also deceiving. Contrary to what they point out, the amendatory law (Republic Act No. 8294) does not add to the existing elements of the crime of illegal possession of firearms. What it does is merely to excuse the accused from prosecution of the same in case another crime is committed. In People vs. Valdez,[9] this Court, under the ponencia of Justice Jose A.R. Melo, explained that the dismissal of the second case against Valdez involving violation of P.D. 1866 did not mean that there can no longer be any prosecution for the crime of illegal possession of firearm. Consequently, all pending cases as well as subsequent violations of P.D. 1866, as amended, will continue to be prosecuted and tried if no other crimes expressly indicated in R.A. 8294[10] concur. Considering that the other offense charged in Criminal Case No. 14354 for violation of COMELEC Resolution No. 3045 is not one of those enumerated under R.A. 8294, the respondent judge was correct in not quashing the information in Criminal Case No. 14353.[11] Still under the first issue, Petitioners argument that the continuation of the two questioned cases against them violates the Constitutional prohibition on double jeopardy is not only strained but totally unacceptable. It is manifestly clear from the records that no first jeopardy has yet attached. Section 7, Rule 117 of the Rules of Court, as amended, provides: Section 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[12] Significantly, the last three requisites are absent in this case, petitioners not having been arraigned in either case up to this date. Hence, Criminal Case No. 14353 should proceed. The second issue is likewise resolved against Petitioners. While they are correct in saying that the Commission on Elections has the exclusive power to investigate and prosecute all election offenses under the Omnibus Election Code,[13] such authority was subsequently qualified and explained, thus: 1993 COMELEC RULES OF PROCEDURE

SECTION 1. Authority of the Commission to Prosecute Election Offenses. The Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission. In the absence of any revocation of the aforequoted authority by COMELEC, the city prosecutors continuing delegation to prosecute Criminal Case No. 14354 stays. At this point, we also take notice that no less than the counsels for the parties manifested that the COMELEC en banc has deferred further investigation of E.O. No. 98-170.[14] It has also come to our attention that the said election offense principally involves the disqualification and culpability of the late Gov. Salvador P. Socrates and does not therefore fall squarely with the one before us.[15] Thus, prosecution of Criminal Case No. 14354 must likewise continue. As regards the third and final issue raised, the same may not be resolved without a full blown trial. Petitioners argue that P/Supt. F.C. Dimayuga, as Chief of Police of Puerto Princesa City, had no authority to set up check points by virtue of COMELEC Resolution No. 2968.[16] Consequently, the fruits of that allegedly unlawful search are inadmissible. The Petitioners are wrong. First of all, there is no showing that it was P/Supt. Dimayuga who set up the COMELEC Checkpoint at Barangay Sta. Lourdes, Puerto Princesa City. What is stated in his affidavit is that they were conducting a COMELEC Checkpoint. Conducting may very well mean, manning a duly set up checkpoint. Second, it is hard to make any determination as to whether the checkpoint in question was sanctioned by either the Commander or the Director of the AFP or the PNP, respectively. Considering that frantic/emergency calls for assistance were sent to concerned government agencies and the local media through radio transceivers as early as the previous day, we cannot discount the possibility that the questioned checkpoint may have been sanctioned by the proper authorities. Third, the counter affidavit of the Petitioners contradicting the allegations of P/Supt. Dimayugas affidavit only bolster the need for trial in order to ferret out the truth. Petitioners are reminded that questions of fact are not permitted under Rule 65, the inquiry being limited only to the issue of whether or not the public respondent the respondent judge in this case acted without or in excess of his jurisdiction.[17] All these considered, no capricious, whimsical, arbitrary or despotic actions equivalent to grave abuse of discretion amounting to excess or lack of jurisdiction may be validly attributed to the respondents refusal to quash the informations in question. WHEREFORE, for lack of merit, the instant petition is DISMISSED. SO ORDERED.

SECOND DIVISION ANGEL CELINO, SR., Petitioner, Present: QUISUMBING,* J., Chairperson, CARPIO,** CARPIO MORALES, TINGA, and VELASCO, JR., JJ. G.R. No. 170562

- versus -

COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial Court,Capiz, Roxas City, and PEOPLE OF THE PHILIPPINES, Respondents.

Promulgated:

June 29, 2007 x-----------------------------------------------------------------------------------------x DECISION CARPIO MORALES, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals Decision dated April 18, 2005[1] affirming the trial courts denial of petitioner Angel Celino, Sr.s Motion to Quash; and Resolution dated September 26, 2005[2] denying petitioners Motion for Reconsideration of the said Decision.

The following facts are not disputed: Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),[3] and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of firearm), as follows: Criminal Case No. C-137-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period December 15, 2005 to June 9, 2004 without first having obtained the proper authority in writing from the Commission on Elections, Manila, Philippines. CONTRARY TO LAW. [5] Criminal Case No. C-138-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber without first having obtained the proper license or necessary permit to possess the said firearm. CONTRARY TO LAW.[6]

Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation charge.[7] Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash[8] contending that he cannot be prosecuted for illegal possession of firearms x x x if he was also charged of having committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x.[9] By Order of July 29, 2004, 10+ the trial court denied the Motion to Quash on the basis of this Courts*11+ affirmation * in Margarejo v. Hon. Escoses*12+ of therein respondent judges denial of a similar motion to quash on the ground that the other offense charged x x x is not one of those enumerated under R.A. 8294 x x x. Petitioners Motion for Reconsideration was likewise 1 * + 3

denied by September 22, 2004 Resolution,*14+ hence, petitioner filed a Petition for Certiorari*15+ before the Court of Appeals. By Decision dated April 18, 2005,*16+ the appellate court affirmed the trial courts denial of the Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration*17+having been denied by Resolution of September 26, 2005,*18+ petitioner filed the present petition. The petition fails. Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of the appellate court's resolution on October 5, 2005 1 9 + denying his motion for reconsideration. Instead, petitioner chose to file the present petition under Rule * 65 only on December 2, 2005,*20+ a good 58 days after he received the said resolution. Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been raised on appeal, no reason therefor has been advanced.*21+ While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a liberal application of the Rules, no justification having been proffered, as just stated, why the petition was filed beyond the reglementary period,*22+ especially considering that it is substantially just a replication of the petition earlier filed before the appellate court. Technicality aside, the petition fails just the same. The relevant provision of R.A. 8294 reads: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. xxxx (Underscoring supplied) The crux of the controversy lies in the interpretation of the underscored proviso. Petitioner, citing Agote v. Lorenzo,People v. Ladjaalam,*24+ and other similar cases,*25+contends that the mere filing of an information for gun ban violation + 3 2 * against him necessarily bars his prosecution for illegal possession of firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses *26+ and People v. Valdez.*27+ In Agote,*28+ this Court affirmed the accuseds conviction for gun ban violation but exonerated him of the illegal possession of firearm charge because it cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the

Gun Ban.*29+ Agote is based on Ladjaalam*30+ where this Court held: x x x A simple reading *of RA 8294+ shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. x x x xxxx x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.*31+ The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word committed taken in its ordinary sense, and in light of the Constitutional presumption of innocence,*32+ necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.*33+ Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.*34+ In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.*35+ Consequently, the proviso does not yet apply. More applicable is Margarejo*36+ where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that the other offense charged *i.e., violation of gun ban+ x x x is not one of those enumerated under R.A. 8294 x x x.*37+ in consonance with the earlier pronouncement in Valdez*38+ that all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x xx.*39+ In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, 40+ or absorbed as an element of rebellion, * insurrection, sedition or attempted coup detat.*41+ Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted. Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to appealtherefrom in the manner authorized by law.*42+ Although the special civil action for certiorari may be availed of in case there is a grave abuse of discretion,*43+ the appellate court correctly dismissed the petition as that vitiating error is not attendant in the present case. WHEREFORE, the petition is DISMISSED. SO ORDERED.

Adm. Case No. 7252

November 22, 2006[CBD 05-1434]

JOHNNY NG, Complainant, vs.ATTY. BENJAMIN C. ALAR, Respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before the Court is Resolution No. XVII-2006-223 dated April 27, 2006 of the IBP Board of Governors, to wit: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents propensity to resort to undeserved language and disrespectful stance, Atty. Benjamin C. Alar is hereby REPRIMANDED with a stern Warning that severe penalties will be imposed in case similar misconduct is again committed. Likewise, the counter complaint against Atty. Jose Raulito E. Paras and Atty. Elvin Michael Cruz is hereby DISMISSED for lack of merit. A verified complaint1 dated February 15, 2005 was filed by Johnny Ng (complainant) against Atty. Benjamin C. Alar (respondent) before the Integrated Bar of the Philippines (IBP), Commission on Bar Discipline (CBD), for Disbarment. Complainant alleges that he is one of the respondents in a labor case with the National Labor Relations Commission (NLRC) docketed as NLRC NCR CA No. 040273-04, while respondent is the counsel for complainants. The Labor Arbiter (LA) dismissed the complaint. On appeal, the NLRC rendered a Decision2affirming the decision of the LA. Respondent filed a Motion for Reconsideration with Motion to Inhibit (MRMI),3pertinent portions of which read: x x x We cannot help suspecting that the decision under consideration was merely copied from the pleadings of respondentsappellees with very slight modifications. But we cannot accept the suggestion, made by some knowledgeable individuals, that the actual writer of the said decision is not at all connected with the NLRC First Division. x x x Why did the NLRC, First Division, uphold the Labor Arbiter in maintaining that the separation pay should be only one half month per year of service? Is jurisprudence on this not clear enough, or is there another reason known only to them? x x x If this is not grave abuse of discretion on the part of the NLRC, First Division, it is ignominious ignorance of the law on the part of the commissioners concerned. The NLRC wants proof from the complainants that the fire actually resulted in prosperity and not losses. xxxRespondents failed to prove their claim of losses. And the Honorable Commissioners of the First Division lost their ability to see these glaring facts. x x x How much is the separation pay they should pay? One month per year of service and all of it to the affected workers not to some people in the NLRC in part. x x x They should have taken judicial notice of this prevalent practices of employers xxx. If the Honorable Commissioners, of the First Division do not know this, they are indeed irrelevant to real life. x x x we invite the Honorable Commissioners of the First Division to see for themselves the evidence before them and not merely rely on their reviewers and on the word of their ponente. If they do this honestly they cannot help seeing the truth. Yes, honesty on the part of the Commissioners concerned is what is lacking, not the evidence. Unfair labor practice stares them in the face. If labor arbiter Santos was cross-eyed in his findings of fact, the Honorable Commissioners of the First Division are doubly so and with malice thrown in. If the workers indeed committed an illegal strike, how come their only "penalty" is removing their tent? It is obvious that the Labor Arbiter and the Honorable Commissioners know deep in their small hearts that there was no strike. This is the only reason for the finding of "illegal strike". Without this finding, they have no basis to remove the tent; they have to invent that basis. x x x The union in its "Union Reply To The Position Paper Of Management" and its Annexes has shown very clearly that the so called strike is a myth. But Commissioner Dinopol opted to believe the myth instead of the facts. He fixed his sights on the tent in front of the wall and closed his eyes to the open wide passage way and gate beside it. His eyes, not the ingress and egress of the premises, are blocked by something so thick he cannot see through it. His impaired vision cannot be trusted, no doubt about it.

Commissioner Dinopol has enshrined a novel rule on money claims. Whereas, before, the established rule was, in cases of money claims the employer had the burden of proof of payment. Now it is the other way around. x x x For lack of a better name we should call this new rule the "Special Dinopol Rule". But only retirable commissioners are authorized to apply this rule and only when the money claims involved are substantial. When they are meager the ordinary rules apply. x x x how Commissioner Dinopol is able to say that the pay slips proved that the sixteen (16) claimants were already paid their service incentive leave pay. This finding is copied verbatim from the cross-eyed decision of Labor Arbiter Santos x x x . The evidence already on record proving that the alleged blocking of the ingress and egress is a myth seem invisible to the impaired sight of Commissioner Dinopol. He needs more of it. x x x Commissioner Dinopol by his decision under consideration (as ponente [of] the decision that he signed and caused his cocommissioners in the First Division to sign) has shown great and irreparable impartiality, grave abuse of discretion and ignorance of the law. He is a shame to the NLRC and should not be allowed to have anything to do with the instant case any more. Commissioner Go and Chairman Seeres, by negligence, are just as guilty as Dinopol but, since the NLRC rules prohibit the inhibition of the entire division, Chairman Seeres should remain in the instant case and appoint two (2) other commissioners from another division to sit with him and pass final judgment in the instant case.4 (Emphasis supplied) In his Answer with Counter-Complaint dated April 6, 2005, respondent Alar contends that the instant complaint only intends to harass him and to influence the result of the cases between complainant and the workers in the different fora where they are pending; that the Rules of Court/Code of Professional Responsibility applies only suppletorily at the NLRC when the NLRC Rules of Procedure has no provision on disciplinary matters for litigants and lawyers appearing before it; that Rule X of the NLRC Rules of Procedure provides for adequate sanctions against misbehaving lawyers and litigants appearing in cases before it; that the Rules of Court/Code of Professional Responsibility does not apply to lawyers practicing at the NLRC, the latter not being a court; that LAs and NLRC Commissioners are not judges nor justices and the Code of Judicial Conduct similarly do not apply to them, not being part of the judiciary; and that the labor lawyers who are honestly and conscientiously practicing before the NLRC and get paid on a contingent basis are entitled to some latitude of righteous anger when they get cheated in their cases by reason of corruption and collusion by the cheats from the other sectors who make their lives and the lives of their constituents miserable, with impunity, unlike lawyers for the employers who get paid, win or lose, and therefore have no reason to feel aggrieved.5 Attached to the Counter-Complaint is the affidavit of union president Marilyn Batan wherein it is alleged that Attys. Paras and Cruz violated the Code of Professional Responsibility of lawyers in several instances, such that while the labor case is pending before the NLRC, respondents Paras and Cruz filed a new case against the laborers in the Office of the City Engineer of Quezon City (QC) to demolish the tent of the workers, thus splitting the jurisdiction between the NLRC and the City Engineer's Office (CEO) of QC which violates Canon 12, Rules 12.02 and 13.03; that although Ng signed the disbarment complaint against Alar, respondents Parass and Cruzs office instigated the said complaint which violates Canon 8; that Ng's company did not pay income tax for the year 2000 allegedly for non-operation due to fire and respondents consented to this act of the employer which violates Canon 19, Rule 19.02; and that when the case started, there were more or less 100 complainants, but due to the acts of the employer and the respondents, the number of complainants were reduced to almost half which violates Canon 19, Rule 19-01, 19-02 and 19-03.6 In Answer to the Counter-Complaint dated April 14, 2005,7 respondents Paras and Cruz alleged: At no time did they file multiple actions arising from the same cause of action or brook interference in the normal course of judicial proceedings; the reliefs sought before the CEO has nothing to do with the case pending before the NLRC; the demolition of the nuisance and illegal structures is a cause of action completely irrelevant and unrelated to the labor cases of complainant; the CEO was requested to investigate certain nuisance structures located outside the employer's property, which consist of shanties, tents, banners and other paraphernalia which hampered the free ingress to and egress out of the employer's property and present clear and present hazards; the Office of the City Engineer found the structures violative of pertinent DPWH and MMDA ordinances; the pendency of a labor case with the NLRC is completely irrelevant since the holding of a strike, legal or not, did not validate or justify the construction of illegal nuisance structures; the CEO proceeded to abate the nuisance structures pursuant to its power to protect life, property and legal order; it was not their idea to file the disbarment complaint against respondent Alar; they merely instructed their client on how to go about filing the case, after having been served a copy of the derogatory MRMI; Canon 8 should not be perceived as an excuse for lawyers to turn their backs on malicious acts done by their brother lawyers; the complaint failed to mention that the only reason the number of complainants were reduced is because of the amicable settlement they were able to reach with most of them; their engagement for legal services is only for labor and litigation cases; at no time were they consulted regarding the tax concerns of their client and therefore were never privy to the financial records of the latter; at no time did they give advice regarding their client's tax concerns; respondent Alar's attempt at a disbarment case against them is unwarranted, unjustified and obviously a mere retaliatory action on his part. The case, docketed as CBD Case No. 05-1434, was assigned by the IBP to Commissioner Patrick M. Velez for investigation, report and recommendation. In his Report and Recommendation, the Investigating Commissioner found respondent guilty of using improper and abusive language and recommended that respondent be suspended for a period of not less than three months with a stern warning that more severe penalty will be imposed in case similar misconduct is again committed.

On the other hand, the Investigating Commissioner did not find any actionable misconduct against Attys. Paras and Cruz and therefore recommended that the Counter-Complaint against them be dismissed for lack of merit. Acting on the Report and Recommendation, the IBP Board of Governors issued the Resolution hereinbefore quoted. While the Court agrees with the findings of the IBP, it does not agree that respondent Alar deserves only a reprimand. The Code of Professional Responsibility mandates: CANON 8 A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel. Rule 8.01 A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper. CANON 11 A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others. Rule 11.03 A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Rule 11.04 A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. The MRMI contains insults and diatribes against the NLRC, attacking both its moral and intellectual integrity, replete with implied accusations of partiality, impropriety and lack of diligence. Respondent used improper and offensive language in his pleadings that does not admit any justification. In Lacurom v. Jacoba,8 the Court ratiocinated as follows: Well-recognized is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. However, even the most hardened judge would be scarred by the scurrilous attack made by the 30 July 2001 motion on Judge Lacurom's Resolution. On its face, the Resolution presented the facts correctly and decided the case according to supporting law and jurisprudence. Though a lawyer's language may be forceful and emphatic, it should always be dignified and respectful, befitting the dignity of the legal profession. The use of unnecessary language is proscribed if we are to promote high esteem in the courts and trust in judicial administration. In Uy v. Depasucat,9 the Court held that a lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. It must be remembered that the language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory, illuminating but not offensive.10 A lawyer's language should be forceful but dignified, emphatic but respectful as befitting an advocate and in keeping with the dignity of the legal profession.11 Submitting pleadings containing countless insults and diatribes against the NLRC and attacking both its moral and intellectual integrity, hardly measures to the sobriety of speech demanded of a lawyer. Respondent's assertion that the NLRC not being a court, its commissioners, not being judges or justices and therefore not part of the judiciary; and that consequently, the Code of Judicial Conduct does not apply to them, is unavailing. In Lubiano v. Gordolla,12 the Court held that respondent became unmindful of the fact that in addressing the NLRC, he nonetheless remained a member of the Bar, an oath-bound servant of the law, whose first duty is not to his client but to the administration of justice and whose conduct ought to be and must be scrupulously observant of law and ethics.13 Respondents argument that labor practitioners are entitled to some latitude of righteous anger is unavailing. It does not deter the Court from exercising its supervisory authority over lawyers who misbehave or fail to live up to that standard expected of them as members of the Bar.14 The Court held in Rheem of the Philippines v. Ferrer,15 thus: 2. What we have before us is not without precedent. Time and again, this Court has admonished and punished, in varying degrees, members of the Bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this Court or the lower courts. Resort by an attorney in a motion for reconsideration to words which may drag this Court down into disrepute, is frowned upon as "neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in the motion" are "sufficient," and such

words "superfluous." It is in this context that we must say that just because Atty. Armonio "thought best to focus the attention" of this Court "to the issue in the case" does not give him unbridled license in language. To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Courts attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive. To be proscribed then is the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration, or which could have the effect of "harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief." Stability of judicial institutions suggests that the Bar stand firm on this precept. The language here in question, respondents aver, "was the result of overenthusiasm." It is but to repeat an old idea when we say that enthusiasm, or even excess of it, is not really bad. In fact, the one or the other is no less a virtue, if channeled in the right direction. However, it must be circumscribed within the bounds of propriety and with due regard for the proper place of courts in our system of government.16 Respondent has clearly violated Canons 8 and 11 of the Code of Professional Responsibility. His actions erode the publics perception of the legal profession. However, the penalty of reprimand with stern warning imposed by the IBP Board of Governors is not proportionate to respondents violation of the Canons of the Code of Professional Responsibility. Thus, he deserves a stiffer penalty of fine in the amount of P5,000.00. Anent the Counter-Complaint filed against Attys. Paras and Cruz, the Court finds no reason to disturb the following findings and recommendation of the Investigating Commissioner, as approved by the IBP Board of Governors, to wit: The Counter-complainant Batan failed to submit any position paper to substantiate its claims despite sufficient opportunity to do so.1wphi1 At any rate, it must be noted that the alleged case with the Office of the City Engineer really partakes of a different cause of action, which has nothing to do with the NLRC case. The decision was made by the city engineer. Respondents remedy should be to question that decision, not bring it to this Commission which has no jurisdiction over it. We can not substitute our judgment for the proper courts who should determine the propriety or sagacity of the city engineers action. Furthermore, parties are not prohibited from availing themselves of remedies available in law provided; these acts do not exceed the bounds of decency. In supporting the action against respondents conduct, no such abuse may be gleaned. Indeed, it is the attorneys duty as an officer of the court to defend a judge from unfounded criticism or groundless personal attack. This requires of him not only to refrain from subjecting the judge to wild and groundless accusation but also to discourage other people from so doing and to come to his defense when he is so subjected. By the very nature of his position a judge lacks the power, outside of his court, to defend himself against unfounded criticism and clamor and it is the attorney, and no other, who can better or more appropriately support the judiciary and the incumbents of the judicial positions. (Agpalo, p. 143 citing People v. Carillo, 77 Phil. 572 (1946); Surigao Mineral Reservation Board v. Cloribel, 31 SCRA 1 (1970); see Cabansag v. Fernandez, 102 Phil. 152 (1957) Whether the disbarment complaint was filed by Ng or by his lawyers is therefore not of great import, what is more apropos would be the contents of the complaint and whether the same is sufficient to consider disciplinary sanctions. Likewise, the tax case is a different matter altogether. Since the respondent lawyers have already stated that they were not engaged as counsels to take care of their clients tax problems, then they cannot be held accountable for the same. If any wrongdoing has been committed by complainant Ng, he should answer for that and those lawyers who were responsible for such acts be held liable jointly. There is no showing [that] attorneys Paras and Cruz were responsible for that tax fiasco.1wphi1 Finally, while it may be true that Batans group has been greatly diminished from about 100 claimants to less than half the number is not by itself an actionable misconduct. Lawyers are duty bound to foster amicable settlement of cases; litigation and adversarial proceedings while a necessary part of the practice is not encouraged, because it will save expenses and help unclogged [sic] the dockets. If the compromise is fair then there is no reason to prevent the same. There is nothing in the counter-complaint which shows that the compromise agreement and waivers executed appear to be unfair, hence no reason to hold lawyers liable for the same. Besides, a "compromise is as often the better part of justice as prudence the part of valor and a lawyer who encourages compromise is no less the clients champion in settlement out of court than he is the clients champion in the battle in court." (Curtis, The Advocate: Voices in Court, 5 (1958); cited in Agpalos Legal Ethics, p. 86, 1980 ed.) What is therefore respondent Alar*+s beef with the execution of these waivers if these were executed freely by his clients? All told, we do not find anything actionable misconduct against Attorneys Paras and Cruz; hence the dismissal of the countercomplaint against them is proper for absolute lack of merit.17

ACCORDINGLY, we find respondent Atty. Benjamin C. Alar GUILTY of violation of Canons 8 and 11 of the Code of Professional Responsibility. He is imposed a fine of P5,000.00 with STERN WARNING that a repetition of the same or similar act in the future will be dealt with more severely. A.C. No. 7136 August 1, 2007

JOSELANO GUEVARRA, complainant, vs.ATTY. JOSE EMMANUEL EALA, respondent. DECISION PER CURIAM: Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment1 before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated violation of the lawyer's oath." In his complaint, Guevarra gave the following account: He first met respondent in January 2000 when his (complainant's) then-fiancee Irene Moje (Irene) introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary Ann") Tantoco with whom he had three children. After his marriage to Irene on October 7, 2000, complainant noticed that from January to March 2001, Irene had been receiving from respondent cellphone calls, as well as messages some of which read "I love you," "I miss you," or "Meet you at Megamall." Complainant also noticed that Irene habitually went home very late at night or early in the morning of the following day, and sometimes did not go home from work. When he asked about her whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy with her work. In February or March 2001, complainant saw Irene and respondent together on two occasions. On the second occasion, he confronted them following which Irene abandoned the conjugal house. On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her and respondent celebrating with her family and friends. Out of embarrassment, anger and humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house and hauled off all her personal belongings, pieces of furniture, and her share of the household appliances. Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000, the day of his wedding to Irene, reading: My everdearest Irene, By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do. Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us? I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU! I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again. Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS . . . AND THE WONDERFUL THINGS YOU DO!

BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE! I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!"2

Eternally yours,NOLI

Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11th Street, New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He also learned still later that when his friends saw Irene on or about January 18, 2002 together with respondent during a concert, she was pregnant. In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted letter was handwritten. On paragraph 14 of the COMPLAINT reading: 14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP as they attended social functions together. For instance, in or about the third week of September 2001, the couple attended the launch of the "Wine All You Can" promotion of French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their attendance was reported in Section B of the Manila Standard issue of 24 September 2001, on page 21. Respondent and Irene were photographed together; their picture was captioned: "Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex C.4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their adulterous relationship" supplied), respondent, in his ANSWER, stated: 4. Respondent specifically denies having ever flaunted an adulterous relationship with Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their relationship was low profile and known only to the immediate members of their respective families, and that Respondent, as far as the general public was concerned, was still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring supplied) On paragraph 15 of the COMPLAINT reading: 15. Respondent's adulterous conduct with the complainant's wife and his apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity, making him morally unfit to keep his membership in the bar. He flaunted his aversion to the institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the love letter to complainant's bride on the very day of her wedding, vowing to continue his love for her "until we are together again," as now they are. 6 (Underscoring supplied), respondent stated in his ANSWER as follows: 5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding his adulterousrelationship and that his acts demonstrate gross moral depravity thereby making him unfit to keep his membership in the bar, the reason being that Respondent's relationship with Irene was not under scandalous circumstances and that as far as his relationship with his own family: 5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary Anne as in fact they still occasionally meet in public, even if Mary Anne is aware of Respondent's special friendship with Irene. xxxx 5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by calling the institution of marriage a mere piece of paper because his reference [in his above-quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a piece of paper was merely with respect to the formality of the marriage contract.7 (Emphasis and underscoring supplied) Respondent admitted8 paragraph 18 of the COMPLAINT reading:

18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The Constitution regards marriage as an inviolable social institution and is the foundation of the family (Article XV, Sec. 2).9 And on paragraph 19 of the COMPLAINT reading: 19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he, as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the complainant's wife, he mocked the institution of marriage, betrayed his own family, broke up the complainant's marriage, commits adultery with his wife, and degrades the legal profession.10 (Emphasis and underscoring supplied), respondent, in his ANSWER, stated: 7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the reason being thatunder the circumstances the acts of Respondent with respect to his purely personal and low profile special relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct as would be a ground for disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and underscoring supplied) To respondent's ANSWER, complainant filed a REPLY,12 alleging that Irene gave birth to a girl and Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to the Reply, as Annex "A," a copy of a Certificate of Live Birth13 bearing Irene's signature and naming respondent as the father of her daughter Samantha Irene Louise Moje who was born on February 14, 2002 at St. Luke's Hospital. Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS14 dated January 10, 2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth attached to the complainant's Reply." 15 Respondent moved to dismiss the complaint due to the pendency of a civil case filed by complainant for the annulment of his marriage to Irene, and a criminal complaint for adultery against respondent and Irene which was pending before the Quezon City Prosecutor's Office. During the investigation before the IBP-CBD, complainant's Complaint-Affidavit and Reply to Answer were adopted as his testimony on direct examination.16 Respondent's counsel did not cross-examine complainant.17 After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a RECOMMENDATION18 dated October 26, 2004, found the charge against respondent sufficiently proven. 12-page REPORT AND

The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility reading: Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Underscoring supplied), and Rule 7.03 of Canon 7 of the same Code reading: Rule 7.03: A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Underscoring supplied) The IBP Board of Governors, however, annulled and set aside the Recommendation of the Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution dated January 28, 2006 briefly reading: RESOLUTION NO. XVII-2006-06 CBD Case No. 02-936Joselano C. Guevarra vs.Atty. Jose Emmanuel M. Ealaa.k.a. Noli Eala RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit.20 (Italics and emphasis in the original) Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule 13922 of the Rules of Court. The petition is impressed with merit. Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the Investigating Commissioner and dismissing

the case for lack of merit, gave no reason therefor as its above-quoted 33-word Resolution shows. Respondent contends, in his Comment23 on the present petition of complainant, that there is no evidence against him.24 The contention fails. As the IBP-CBD Investigating Commissioner observed: While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item published in the Manila Standard (Exh. "D"), even taken together do not sufficiently prove that respondent is carrying on an adulterous relationship with complainant's wife, there are other pieces of evidence on record which support the accusation of complainant against respondent. It should be noted that in his Answer dated 17 October 2002, respondent through counsel made the following statements to wit: "Respondent specifically denies having [ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the Complaint, the truth of the matter being [that]their relationship was low profile and known only to immediate members of their respective families . . . , and Respondent specifically denies the allegations in paragraph 19 of the complaint, the reason being that under the circumstances the acts of the respondents with respect to his purely personal and low profile relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct . . ." These statements of respondent in his Answer are an admission that there is indeed a "special" relationship between him and complainant's wife, Irene, [which] taken together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-1") sufficiently prove that there was indeed an illicit relationship between respondent and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth of Samantha it should be noted that complainant's wife Irene supplied the information that respondent was the father of the child. Given the fact that the respondent admitted his special relationship with Irene there is no reason to believe that Irene would lie or make any misrepresentation regarding the paternity of the child. It should be underscored that respondent has not categorically denied that he is the father of Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied) Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void."26 (Italics supplied) What respondent denies is having flaunted such relationship, he maintaining that it was "low profile and known only to the immediate members of their respective families." In other words, respondent's denial is a negative pregnant, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that thequalifying circumstances alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and underscoring supplied) A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent a "lawyer," 38 years old as the child's father. And the phrase "NOT MARRIED" is entered on the desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature attributed to Irene in the certificate28 with her signature on the Marriage Certificate29 shows that they were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner noted, respondent never denied being the father of the child. Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003 Affidavit30 which he identified at the witness stand, declared that Irene gave the information in the Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years old and a lawyer.31 Without doubt, the adulterous relationship between respondent and Irene has been sufficiently proven by more than clearly preponderant evidence that evidence adduced by one party which is more conclusive and credible than that of the other party and, therefore, has greater weight than the other32 which is the quantum of evidence needed in an administrative case against a lawyer. Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. . . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required.33 (Emphasis supplied)

Respondent insists, however, that disbarment does not lie because his relationship with Irene was not, under Section 27 of Rule 138 of the Revised Rules of Court, reading: SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Emphasis and underscoring supplied), under scandalous circumstances.34 The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the phrase "grossly immoral conduct," not "under scandalous circumstances." Sexual intercourse under scandalous circumstances is, following Article 334 of the Revised Penal Code reading: ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. x x x x, an element of the crime of concubinage when a married man has sexual intercourse with a woman elsewhere. "Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as 'grossly immoral conduct' depends on the surrounding circumstances."35 The case at bar involves a relationship between a married lawyer and a married woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is the following pronouncement of this Court in Vitug v. Rongcal:36 On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order to merit disciplinary sanction. We disagree. xxxx While it has been held in disbarment cases that the mere fact of sexual relations between two unmarriedadults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect tobetrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifestsdeliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.37 (Emphasis and underscoring supplied) And so is the pronouncement in Tucay v. Atty. Tucay:38 The Court need not delve into the question of whether or not the respondent did contract a bigamous marriage . . . It is enough that the records of this administrative case substantiate the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e., that indeed respondent has beencarrying on an illicit affair with a married woman, a grossly immoral conduct and indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.39 (Underscoring supplied) Respondent in fact also violated the lawyer's oath he took before admission to practice law which goes:

I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution andobey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Underscoring supplied) Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe mutual love, respect and fidelity, and render mutual help and support."40 Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law." Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's petition for nullity of his (complainant's) marriage to Irene had been granted by Branch 106 of the Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed against respondent and Irene "based on the same set of facts alleged in the instant case," which was pending review before the Department of Justice (DOJ), on petition of complainant, had been, on motion of complainant, withdrawn. The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to Withdraw Petition for Review reads: Considering that the instant motion was filed before the final resolution of the petition for review, we are inclined to grant the same pursuant to Section 10 of Department Circular No. 70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the petitioner may withdraw the same at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has been taken."42 (Emphasis supplied by complainant) That the marriage between complainant and Irene was subsequently declared void ab initio is immaterial. The acts complained of took place before the marriage was declared null and void.43 As a lawyer, respondent should be aware that a man and a woman deporting themselves as husband and wife are presumed, unless proven otherwise, to have entered into a lawful contract of marriage.44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her marriage with complainant was null and void, and despite respondent himself being married, he showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a lawyer. As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly omitted to state that before complainant filed his December 23, 2003 Motion to Withdraw his Petition for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the dismissal by the Quezon City Prosecutor's Office of complainant's complaint for adultery. In reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held: Parenthetically the totality of evidence adduced by complainant would, in the fair estimation of the Department, sufficiently establish all the elements of the offense of adultery on the part of both respondents. Indeed, early on, respondent Moje conceded to complainant that she was going out on dates with respondent Eala, and this she did when complainant confronted her about Eala's frequent phone calls and text messages to her. Complainant also personally witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself was married to another woman. Moreover, Moje's eventual abandonment of their conjugal home, after complainant had once more confronted her about Eala, only served to confirm the illicit relationship involving both respondents. This becomes all the more apparent by Moje's subsequent relocation in No. 71-B, 11th Street, New Manila, Quezon City, which was a few blocks away from the church where she had exchange marital vows with complainant. It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle and that of Moje's were always seen there. Moje herself admits that she came to live in the said address whereas Eala asserts that that was where he held office. The happenstance that it was in that said address that Eala and Moje had decided to hold office for the firm that both had formed smacks too much of a coincidence. For one, the said address appears to be a residential house, for that was where Moje stayed all throughout after her separation from complainant. It was both respondent's love nest, to put short; their illicit affair that was carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby hospital of St. Luke's Medical Center. What finally militates against the respondents is the indubitable fact that in the certificate of birth of the girl, Moje furnished the

information that Eala was the father. This speaks all too eloquently of the unlawful and damning nature of the adulterous acts of the respondents. Complainant's supposed illegal procurement of the birth certificate is most certainly beside the point for both respondents Eala and Moje have not denied, in any categorical manner, that Eala is the father of the child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied) It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery were filed in court, the same would not have been a bar to the present administrative complaint. Citing the ruling in Pangan v. Ramos,46 viz: x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case47 (Italics in the original), this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held: Administrative cases against lawyers belong to a class of their own. They are distinct from and they mayproceed independently of civil and criminal cases. WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006 by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE. Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility. Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts. This Decision takes effect immediately. SO ORDERED. PEOPLE VS. AMMINUDIN [163 SCRA 402; G.R. L-74869; 6 Jul 1988] Friday, February 06, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law Facts: Idel Aminnudin, accused-appellant was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him because of a tip from one their informers simply accosted him,inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner. An information for violation of the Dangerous Drugs Act was filed againsthim. Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. Both were arraigned and pleaded not guilty. Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and twopairs of pants. He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with apiece of wood in the chest and arms even as he parried the blows while he was still handcuffed. He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. However the RTC rejected his allegations. Saying that he only has two watches during that time and that he did not sufficiently proved the injuries allegedly sustained.

Issue: Whether or not search of defendants bag is legal.

Held: The search was illegal. Defendant was not caught in flagrante delicto, which could allow warrantless arrest or search. At the moment of his arrest, he was not committing a crime. Nor was he about to do so or had just done so. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. The said marijuana therefore could not be appreciated as evidence against the defendant, and furthermore he is acquitted of the crime as charged.

[G.R. No. 123595. December 12, 1997]

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DECISION DAVIDE, JR., J.:

In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A-2,[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5] At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with *t+heir eyes moving very fast.[6] Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioners front waist line.[7] Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander.[8] On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9] Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11] On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in evidence.[12]

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he *f+ound that *the] major components consisting of *a+ high filler and fuse assembly *were+ all present, and concluded that the grenade was *l+ive and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991.[13] Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.[14] The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information.[15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been premature.[16] The RTC emphasized that Yu and his companions were *c+onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence[17] and the officers *h+ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time, place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions as they saw the arresting officers approach, thus *i+t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.[18] The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner *l+ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt beyond reasonable doubt. In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21] In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS ARREST. 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24] In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was planted by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioners possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was attempting to commit an offense, thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious

character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote,[26] which petitioner relied upon, was inapplicable in light of *c+rucial differences, to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioners guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes moving very fast. Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same.[31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 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 in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped *** A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop

and frisk."[35] In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of the grenade from the accused *as+ an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38] Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ***[39] Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[41] Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, here are at least three (3) reasons why the stop-and-frisk was invalid: First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q And what were they doing? A They were merely standing.

Q You are sure of that? A Yes, sir.

Q And when you saw them standing, there were nothing or they did not create any commotion? A None, sir.

Q Neither did you see them create commotion? A None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.[43] What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED.

Stonehill vs. Diokno 20 SCRA 383 (GR No. L-19550) June 19, 1967 CJ Concepcion Facts: Upon application of the prosecutors (respondent) several judges (respondent) issued on different dates a total of 42 search warrants against petitioners (Stonehill et. al.) and/or corporations of which they were officers to search the persons of the petitioner and/or premises of their officers warehouses and/or residences and to seize and take possession of the personal property which is the subject of the offense, stolen, or embezzled and proceeds of fruits of the offense, or used or intended to be used or the means of committing the offense, which is described in the application as violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and the Revised Penal Code.

Petitioners filed with the Supreme Court this original action for certiorari, prohibition and mandamus and injunction and prayed that, pending final disposition of the case, a writ of preliminary injunction be issued against the prosecutors, their agents and representatives from using the effect seized or any copies thereof, in the deportation case and that thereafter, a decision be rendered quashing the contested search warrants and declaring the same null and void. For being violative of the constitution and the Rules of court by: (1) not describing with particularity the documents, books and things to be seized; (2) money not mentioned in the warrants were seized; (3) the warrants were issued to fish evidence for deportation cases filed against the petitioner; (4) the searches and seizures were made in an illegal manner; and (5) the documents paper and cash money were not delivered to the issuing courts for disposal in accordance with law. In their answer, the prosecutors (respondent) alleged; (1) search warrants are valid and issued in accordance with law; (2) defects of said warrants, were cured by petitioners consent; and (3) in any event the effects are admissible regardless of the irregularity. The Court granted the petition and issued the writ of preliminary injunction. However by a resolution, the writ was partially lifted dissolving insofar as paper and things seized from the offices of the corporations. Issues: 1.) Whether or not the petitioners have the legal standing to assail the legality of search warrants issued against the corporation of which they were officers.

2.) Whether or not the search warrants issued partakes the nature of a general search warrants. 3.) Whether or not the seized articles were admissible as evidence regardless of the illegality of its seizure. Held: I Officers of certain corporations, from which the documents, papers, things were seized by means of search warrants, have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may be. Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. Officers of certain corporations can not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. II The Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probablecause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.

Search warrants issued upon applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossiblefor the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performedparticular acts, or committed specific omissions, violating a given provision of our criminal laws. General search warrants are outlawed because the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. To prevent the issuance of general warrants this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court by providing in its counterpart, under the Revised Rules of Court that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." Seizure of books and records showing all business transaction of petitioners persons, regardless of whether the transactions were legal or illegal contravened the explicit command of our Bill of Rights - that the things to be seized be particularly described - as well as tending to defeat its major objective the elimination of general warrants. III Most common law jurisdiction have already given up the Moncado ruling and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunctionagainst unreasonable searches and seizures. In the language of Judge Learned Hand: As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed. The non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable

cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. The Court held that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs.

G.R. No. 83988 May 24, 1990 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S RIGHTS (ULAP),petitioners, vs.GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for and in his own behalf and co-petitioners.

PADILLA, J.: In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was dismissed. Petitioners have filed the instant motion and supplemental motion for reconsideration of said decision. Before submission of the incident for resolution, the Solicitor General, for the respondents, filed his comment, to which petitioners filed a reply. It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are not illegal per se.Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by either military or police forces. The sixth (6th) attempted coup d' etat (stronger than all previous ones) was staged only last 1 December 1989. Another attempt at a coup d' etat is taken almost for granted. The NPA, through its sparrow units, has not relented but instead accelerated its liquidation of armed forces and police personnel. Murders, sex crimes, hold-ups and drug abuse have become daily occurrences. Unlicensed firearms and ammunition have become favorite objects of trade. Smuggling is at an all time high. Whether or not effective as expected, checkpoints have been regarded by the authorities as a security measure designed to entrap criminals and insurgents and to constitute a dragnet for all types of articles in illegal trade. No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle's occupants are required to answer a brief question or two. 1 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court:

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to lawabiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. 2 The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and, therefore, violative of the Constitution. 3 As already stated, vehicles are generally allowed to pass these checkpoints after a routine inspection and a few questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense. Again, as held by the U.S. Supreme Court Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States, 267 US 132, 69 L Ed 543,45 S Ct 280, 39 ALR 790 (1925). The cases so holding have, however, always insisted that the officers conducting the search have 'reasonable or probable cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. ... 4 Besides these warrantless searches and seizures at the checkpoints are quite similar to searches and seizures accompanying warrantless arrests during the commission of a crime, or immediately thereafter. In People vs. Kagui Malasuqui it was held To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest the most expert, and the most depraved of criminals, facilitating their escape in many instances. 5 By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure areas of an international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety, and necessity. Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses committed by the military manning the checkpoints. The Court's decision was concerned with power, i.e. whether the government employing the military has the power to install said checkpoints. Once that power is acknowledged, the Court's inquiry ceases. True, power implies the possibility of its abuse. But whether there is abuse in a particular situation is a different "ball game" to be resolved in the constitutional arena. The Court, like all other concerned members of the community, has become aware of how some checkpoints have been used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area and other urban centers, are largely blamed on the checkpoints, because the men manning them have reportedly become "experts" in mulcting travelling traders. This, of course, is a national tragedy . But the Court could not a priori regard in its now assailed decision that the men in uniform are rascals or thieves. The Court had to assume that the men in uniform live and act by the code of honor and they are assigned to the checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a military "concoction." It behooves the military to improve the QUALITY of their men assigned to these checkpoints. For no system or institution will succeed unless the men behind it are honest, noble and dedicated. In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly for their abusive acts; 7 This tenet should be ingrained in the soldiery in the clearest of terms by higher military authorities. ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial is FINAL. SO ORDERED.

Separate Opinions

GUTIERREZ, JR., J., concurring: The problem we face in the resolution of this petition arises from our knowledge that law enforcement officers use checkpoints as opportunities for mulcting oppression, and other forms of abuse. However, to completely ban checkpoints as unconstitutional is to lose sight of the fact that the real objective behind their use is laudable and necessary, If we say that ALL checkpoints are unconstitutional, we are banning a law enforcement measure not because it is per se illegal but because it is being used for evil purposes by the soldiers or police who man it. This is another instance where the Supreme Court is urged to solve a problem of discipline facing the executive and the military. My reluctant concurrence with the majority opinion is premised on the hope that our top military and police officials will devise effective measures which would insure that checkpoints are used only where absolutely needed and that the officers who are assigned to these checkpoints discharge their duties as professional soldiers or peace officers in the best traditions of the military and the police. I repeat that this is a problem of enforcement and not legality. CRUZ, J., dissenting: I reiterate my original dissent and add the following observations. The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup, the "sparrow" killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the failure of the authorities to suppress crime was an excuse to suspend the Bill of Rights. It has always been my impression that even criminals, and more so the innocent, are entitled to the right against unreasonable searches and seizures. The protection of the security of the State is a convenient pretext of the police state to suppress individual rights. Constitutional shortcuts should not be allowed in a free regime where the highest function of authority is precisely to exalt liberty. The ponencia says that the Constitution is not violated because "the inspection of the vehicle is limited to a visual search." Assuming that this is all the search entails, it suffers from the additional defect of inefficaciousness, making it virtually useless. It did not prevent the staging of the December 1 coup, where the rebels used all kinds of high-powered weapons that were not detected by "a visual search." Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the judge," not by a soldier or a policeman. It is not for the peace officer to decide when a warrantless search and seizure may be made save in the exceptional instances allowed, as where a crime is being committed or before or after its commission. I can hardly believe that the majority is seriously offering this exception as a continuing situation to justify the regular warrantless searches at the checkpoints. It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless." Let us at least be realistic. This Court would be the first to dismiss the complaint if not supported by hard evidence, which we know is not easily come by. The remedy, in my view. is to remove the source of the evil instead of leaving it unchecked and then simply suggesting a cure, which is not even effective. It is like inoculating a patient after exposing him to contagion. SARMIENTO, J., dissenting: The majority states that checkpoints are justified by "grave peril." The question, however, is whether or not the existence of such grave perils has the effect of suspending the Bill of Rights, specifically, the right against unreasonable searches and seizures. Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution." (CONST., art. VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see how a mere executive act can. That the State has the right to defend itself is a proposition difficult to argue against. The query, again, is whether or not it may defend itself against its enemies at the expense of liberty. After fourteen years of authoritarian rule, I think by now we should have learned our lesson ' and known better.

Although "routine inspections" are another matter, I can not think that the checkpoints in question have been meant to undertake routine inspections alone. As it is, no ground rules have been given our law enforcers, which is to say that they have the carte blanche to search vehicles and even persons without the benefit of a valid judicial warrant. I do not believe that this can be done in a constitutional regime. I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that case, there was a waiver of the right against unreasonable search and secondly, there existed a clear probable cause for search and arrest. Certainly, there was reason for excepting the case from the rule. Malasugui, however, is an exception. And obviously, the majority would make a general rule out of it. Certainly, it is different where the authority has probable cause to believe that a crime has been committed by a suspect, in which case, it may place him under arrest or search his person (Malasugui, supra). But I do not think that it may claim the existence of probable cause for every vehicle or person stopped and searched at a checkpoint. And precisely, check-points are intended to allow the authorities to fish for probable cause even if in the beginning there was none. This makes, to my mind, the setting up of checkpoints unconstitutional. Separate Opinions GUTIERREZ, JR., J., concurring: The problem we face in the resolution of this petition arises from our knowledge that law enforcement officers use checkpoints as opportunities for mulcting oppression, and other forms of abuse. However, to completely ban checkpoints as unconstitutional is to lose sight of the fact that the real objective behind their use is laudable and necessary, If we say that ALL checkpoints are unconstitutional, we are banning a law enforcement measure not because it is per se illegal but because it is being used for evil purposes by the soldiers or police who man it. This is another instance where the Supreme Court is urged to solve a problem of discipline facing the executive and the military. My reluctant concurrence with the majority opinion is premised on the hope that our top military and police officials will devise effective measures which would insure that checkpoints are used only where absolutely needed and that the officers who are assigned to these checkpoints discharge their duties as professional soldiers or peace officers in the best traditions of the military and the police. I repeat that this is a problem of enforcement and not legality. CRUZ, J., dissenting: I reiterate my original dissent and add the following observations. The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup, the "sparrow" killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the failure of the authorities to suppress crime was an excuse to suspend the Bill of Rights. It has always been my impression that even criminals, and more so the innocent, are entitled to the right against unreasonable searches and seizures. The protection of the security of the State is a convenient pretext of the police state to suppress individual rights. Constitutional shortcuts should not be allowed in a free regime where the highest function of authority is precisely to exalt liberty. The ponencia says that the Constitution is not violated because "the inspection of the vehicle is limited to a visual search." Assuming that this is all the search entails, it suffers from the additional defect of inefficaciousness, making it virtually useless. It did not prevent the staging of the December 1 coup, where the rebels used all kinds of high-powered weapons that were not detected by "a visual search." Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the judge," not by a soldier or a policeman. It is not for the peace officer to decide when a warrantless search and seizure may be made save in the exceptional instances allowed, as where a crime is being committed or before or after its commission. I can hardly believe that the majority is seriously offering this exception as a continuing situation to justify the regular warrantless searches at the checkpoints. It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless." Let us at least be realistic. This Court would be the first to dismiss the complaint if not supported by hard evidence, which we know is not easily come by. The remedy, in my view. is to remove the source of the evil instead of leaving it unchecked and then simply suggesting a cure, which is not even effective. It is like inoculating a patient after exposing him to contagion. SARMIENTO, J., dissenting:

The majority states that checkpoints are justified by "grave peril." The question, however, is whether or not the existence of such grave perils has the effect of suspending the Bill of Rights, specifically, the right against unreasonable searches and seizures. Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution." (CONST., art. VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see how a mere executive act can. That the State has the right to defend itself is a proposition difficult to argue against. The query, again, is whether or not it may defend itself against its enemies at the expense of liberty. After fourteen years of authoritarian rule, I think by now we should have learned our lesson ' and known better. Although "routine inspections" are another matter, I can not think that the checkpoints in question have been meant to undertake routine inspections alone. As it is, no ground rules have been given our law enforcers, which is to say that they have the carte blanche to search vehicles and even persons without the benefit of a valid judicial warrant. I do not believe that this can be done in a constitutional regime. I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that case, there was a waiver of the right against unreasonable search and secondly, there existed a clear probable cause for search and arrest. Certainly, there was reason for excepting the case from the rule. Malasugui, however, is an exception. And obviously, the majority would make a general rule out of it. Certainly, it is different where the authority has probable cause to believe that a crime has been committed by a suspect, in which case, it may place him under arrest or search his person (Malasugui, supra). But I do not think that it may claim the existence of probable cause for every vehicle or person stopped and searched at a checkpoint. And precisely, check-points are intended to allow the authorities to fish for probable cause even if in the beginning there was none. This makes, to my mind, the setting up of checkpoints unconstitutional. G.R. No. 128845 June 1, 2000

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs.HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents. KAPUNAN, J.: Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than their colleagues in other schools is, of course, beside the point. The point is that employees should be given equal pay for work of equal value. That is a principle long honored in this jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle we uphold today.1wphi1.nt Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents. 1 To enable the School to continue carrying out its educational program and improve its standard of instruction, Section 2(c) of the same decree authorizes the School to employ its own teaching and management personnel selected by it either locally or abroad, from Philippine or other nationalities, such personnel being exempt from otherwise applicable laws and regulations attending their employment, except laws that have been or will be enacted for the protection of employees. Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreignhires and (2) local-hires. The School employs four tests to determine whether a faculty member should be classified as a foreign-hire or a local hire: a. What is one's domicile? b. Where is one's home economy? c. To which country does one owe economic allegiance? d. Was the individual hired abroad specifically to work in the School and was the School responsible for bringing that individual to the Philippines?2

Should the answer to any of these queries point to the Philippines, the faculty member is classified as a local hire; otherwise, he or she is deemed a foreign-hire. The School grants foreign-hires certain benefits not accorded local-hires.1avvphi1 These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than localhires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure. The School explains: A foreign-hire would necessarily have to uproot himself from his home country, leave his family and friends, and take the risk of deviating from a promising career path all for the purpose of pursuing his profession as an educator, but this time in a foreign land. The new foreign hire is faced with economic realities: decent abode for oneself and/or for one's family, effective means of transportation, allowance for the education of one's children, adequate insurance against illness and death, and of course the primary benefit of a basic salary/retirement compensation. Because of a limited tenure, the foreign hire is confronted again with the same economic reality after his term: that he will eventually and inevitably return to his home country where he will have to confront the uncertainty of obtaining suitable employment after along period in a foreign land. The compensation scheme is simply the School's adaptive measure to remain competitive on an international level in terms of attracting competent professionals in the field of international education.3 When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International School Alliance of Educators, "a legitimate labor union and the collective bargaining representative of all faculty members"4 of the School, contested the difference in salary rates between foreign and local-hires. This issue, as well as the question of whether foreign-hires should be included in the appropriate bargaining unit, eventually caused a deadlock between the parties. On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and Mediation Board to bring the parties to a compromise prompted the Department of Labor and Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing subsequently denied petitioner's motion for reconsideration in an Order dated March 19, 1997. Petitioner now seeks relief in this Court. Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with nationalities other than Filipino, who have been hired locally and classified as local hires.5 The Acting Secretary of Labor found that these non-Filipino localhires received the same benefits as the Filipino local-hires. The compensation package given to local-hires has been shown to apply to all, regardless of race. Truth to tell, there are foreigners who have been hired locally and who are paid equally as Filipino local hires.6 The Acting secretary upheld the point-of-hire classification for the distinction in salary rates: The Principle "equal pay for equal work" does not find applications in the present case. The international character of the School requires the hiring of foreign personnel to deal with different nationalities and different cultures, among the student population. We also take cognizance of the existence of a system of salaries and benefits accorded to foreign hired personnel which system is universally recognized. We agree that certain amenities have to be provided to these people in order to entice them to render their services in the Philippines and in the process remain competitive in the international market. Furthermore, we took note of the fact that foreign hires have limited contract of employment unlike the local hires who enjoy security of tenure. To apply parity therefore, in wages and other benefits would also require parity in other terms and conditions of employment which include the employment which include the employment contract. A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary and professional compensation wherein the parties agree as follows: All members of the bargaining unit shall be compensated only in accordance with Appendix C hereof provided that the

Superintendent of the School has the discretion to recruit and hire expatriate teachers from abroad, under terms and conditions that are consistent with accepted international practice. Appendix C of said CBA further provides: The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS) salary schedule. The 25% differential is reflective of the agreed value of system displacement and contracted status of the OSRS as differentiated from the tenured status of Locally Recruited Staff (LRS). To our mind, these provisions demonstrate the parties' recognition of the difference in the status of two types of employees, hence, the difference in their salaries. The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an established principle of constitutional law that the guarantee of equal protection of the laws is not violated by legislation or private covenants based on reasonable classification. A classification is reasonable if it is based on substantial distinctions and apply to all members of the same class. Verily, there is a substantial distinction between foreign hires and local hires, the former enjoying only a limited tenure, having no amenities of their own in the Philippines and have to be given a good compensation package in order to attract them to join the teaching faculty of the School.7 We cannot agree. That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution8 in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith. International law, which springs from general principles of law,9 likewise proscribes discrimination. General principles of law include principles of equity, 10 i.e., the general principles of fairness and justice, based on the test of what is reasonable. 11 The Universal Declaration of Human Rights, 12 the International Covenant on Economic, Social, and Cultural Rights, 13 the International Convention on the Elimination of All Forms of Racial Discrimination, 14 the Convention against Discrimination in Education, 15 the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation 16 all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible. The Constitution 17 specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace the factory, the office or the field but include as well the manner by which employers treat their employees. The Constitution 18 also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code 19 provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment. 20 Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes 21 the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization. Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: a. Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. 22 This rule applies to the School, its "international character" notwithstanding. The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires. 23 The Court finds this argument a little cavalier. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly. The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under similar working conditions. The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of equal work for equal pay. "Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration paid at regular intervals for the rendering of services." In Songco v. National Labor Relations Commission, 24 we said that: "salary" means a recompense or consideration made to a person for his pains or industry in another man's business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation for services rendered. (Emphasis supplied.) While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances. The Constitution enjoins the State to "protect the rights of workers and promote their welfare," 25 "to afford labor full protection." 26 The State, therefore, has the right and duty to regulate the relations between labor and capital.27 These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good. 28 Should such contracts contain stipulations that are contrary to public policy, courts will not hesitate to strike down these stipulations. In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court.1avvphi1 We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-hires. A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law." 29 The factors in determining the appropriate collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status. 30 The basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. 31 It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for purposes of collective

bargaining. The collective bargaining history in the School also shows that these groups were always treated separately. Foreignhires have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the same working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel allowance, are reasonably related to their status as foreignhires, and justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit with local-hires would not assure either group the exercise of their respective collective bargaining rights. WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School of according foreign-hires higher salaries than local-hires. SO ORDERED.