CRIMINAL LAW I

DAY 3

Applicability and effectivity of RPC At the back of the card appears a telephone number in defendant’s own handwriting, the
Generality number of which he can also be contacted.
[CIVIL CODE] Article 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for
principles of public int’l law and to treaty stipulations. (8a)
his wife and the wife of a countryman named Abbas Torabian. The defendant told him that
Exceptions: Treaty, Diplomatic Immunity
he [could] help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was
more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to
FIRST DIVISION
see plaintiff again.
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR
SCALZO, respondents. "On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at
DECISION Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the
merchandize but for the reason that the defendant was not yet there, he requested the
restaurant people to x x x place the same in the refrigerator. Defendant, however, came and
VITUG, J.: Sometime in May 1986, an Information for violation of Sec. 4 of RA 6425,
plaintiff gave him the caviar for which he was paid. Then their conversation was again
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner
focused on politics and business.
Khosrow Minucher and one Abbas Torabian with the RTC, Branch 151, of Pasig City. The
criminal charge followed a "buy-bust operation" conducted by the Philippine police narcotic
agents in the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited "On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at
drug, was said to have been seized. The narcotic agents were accompanied by private Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at
respondent Arthur Scalzo who would, in due time, become one of the principal witnesses for $27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant
the prosecution. On 08 Jan 1988, Presiding Judge Eutropio Migrino rendered a decision did not yet have the money, they agreed that defendant would come back the next day. The
acquitting the two accused. following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff,
and the latter, in turn, gave him the pair of carpets.
On 03 Aug 1988, Minucher filed Civil Case No. 88-45691 before the RTC, Branch 19, of
Manila for damages on account of what he claimed to have been trumped-up charges of "At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's
drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the house and directly proceeded to the latter's bedroom, where the latter and his countryman,
facts and circumstances surrounding the case. Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained
$2k from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife.
The defendant told him that he would be leaving the PH very soon and requested him to
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the PH to
come out of the house for a while so that he can introduce him to his cousin waiting in a cab.
study in the University of the PH in 1974. In 1976, under the regime of the Shah of Iran, he
Without much ado, and without putting on his shirt as he was only in his pajama pants, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, PH.
followed the defendant where he saw a parked cab opposite the street. To his complete
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of
surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the
the United Nations and continued to stay in the PH. He headed the Iranian National
company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed
Resistance Movement in the PH.
and after about 20 minutes in the street, he was brought inside the house by the defendant.
He was made to sit down while in handcuffs while the defendant was inside his bedroom.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house The defendant came out of the bedroom and out from defendant's attaché case, he took
and introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the something and placed it on the table in front of the plaintiff. They also took plaintiff's wife
military. Jose Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto who was at that time at the boutique near his house and likewise arrested Torabian, who
Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was
movement in the PH. not told why he was being handcuffed and why the privacy of his house, especially his
bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his
telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up.’
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose
He was nevertheless told that he would be able to call for his lawyer who can defend him.
Iñigo, the defendant expressed his interest in buying caviar. As a matter of fact, he bought
two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his business after the "The plaintiff took note of the fact that when the defendant invited him to come out to meet his
Khomeini govt cut his pension of over $3,000.00 per month. During their introduction in that cousin, his safe was opened where he kept the $24k the defendant paid for the carpets and
meeting, the defendant gave the plaintiff his calling card, which showed that he is working at another $8k which he also placed in the safe together with a bracelet worth $15k and a pair of
the US Embassy in the PH, as a special agent of the Drug Enforcement Administration, earrings worth $10k. He also discovered missing upon his release his 8 pieces hand-made
Department of Justice, of the United States, and gave his address as US Embassy, Manila. Persian carpets, valued at $65k , a painting he bought for P30k together with his TV and

1
 CRIMINAL LAW I
DAY 3

betamax sets. He claimed that when he was handcuffed, the defendant took his keys from his Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo
wallet. There was, therefore, nothing left in his house. filed a motion to dismiss the complaint on the ground that, being a special agent of the
United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in
1990, addressed to the Department of Foreign Affairs of the PH and a Certification, dated 11
various newspapers, particularly in Australia, America, Central Asia and in the PH. He was
June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful
identified in the papers as an int’l drug trafficker. x x x
copy of its original. In an order of 25 June 1990, the trial court denied the motion to dismiss.

In fact, the arrest of defendant and Torabian was likewise on television, not only in the PH,
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed
but also in America and in Germany. His friends in said places informed him that they saw
G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking
him on TV with said news.
that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred
to the CA, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 Aug
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame 1990. On 31 Oct 1990, the CA promulgated its decision sustaining the diplomatic immunity
handcuffed together, where they were detained for three days without food and water."1 of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition
for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the
Honorable CA, et. al." (cited in 214 SCRA 242), appealing the judgment of the CA. In a
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo
decision, dated 24 Sep 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
and moved for extension of time to file an answer pending a supposed advice from the Court reversed the decision of the appellate court and remanded the case to the lower court
United States Department of State and Department of Justice on the defenses to be raised. for trial. The remand was ordered on the theses (a) that the CA erred in granting the motion
The trial court granted the motion. On 27 Oct 1988, Scalzo filed another special appearance
to dismiss of Scalzo for lack of jurisdiction over his person without even considering the
to quash the summons on the ground that he, not being a resident of the PH and the action issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint contained
being one in personam, was beyond the processes of the court. The motion was denied by sufficient allegations to the effect that Scalzo committed the imputed acts in his personal
the court, in its order of 13 Dec 1988, holding that the filing by Scalzo of a motion for
capacity and outside the scope of his official duties and, absent any evidence to the
extension of time to file an answer to the complaint was a voluntary appearance equivalent contrary, the issue on Scalzo’s diplomatic immunity could not be taken up.
to service of summons which could likewise be construed a waiver of the requirement of
formal notice. Scalzo filed a motion for reconsideration of the court order, contending that a
motion for an extension of time to file an answer was not a voluntary appearance equivalent The Manila RTC thus continued with its hearings on the case. On 17 Nov 1995, the trial
to service of summons since it did not seek an affirmative relief. Scalzo argued that in cases court reached a decision; it adjudged:
involving the United States govt, as well as its agencies and officials, a motion for extension
was peculiarly unavoidable due to the need (1) for both the Department of State and the
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered
Department of Justice to agree on the defenses to be raised and (2) to refer the case to a
for the plaintiff, who successfully established his claim by sufficient evidence, against the
Philippine lawyer who would be expected to first review the case. The court a quo denied the
defendant in the manner following:
motion for reconsideration in its order of 15 Oct 1989.

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of

Scalzo filed a petition for review with the CA, there docketed CA-G.R. No. 17023, assailing
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the sum of
the denial. In a decision, dated 06 Oct 1989, the appellate court denied the petition and
P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review
on certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for
its failure to comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had `The Clerk of the RTC, Manila, is ordered to take note of the lien of the Court on this
failed to show that the appellate court was in error in its questioned judgment. judgment to answer for the unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant.’"2
Meanwhile, at the court a quo, an order, dated 09 Feb 1990, was issued (a) declaring Scalzo
in default for his failure to file a responsive pleading (answer) and (b) setting the case for the While the trial court gave credence to the claim of Scalzo and the evidence presented by
reception of evidence. On 12 Mar 1990, Scalzo filed a motion to set aside the order of him that he was a diplomatic agent entitled to immunity as such, it ruled that he,
default and to admit his answer to the complaint. Granting the motion, the trial court set the nevertheless, should be held accountable for the acts complained of committed outside his
case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint and official duties. On appeal, the CA reversed the decision of the trial court and sustained the
raised the affirmative defenses (a) of Minucher’s failure to state a cause of action in his defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term of
complaint and (b) that Scalzo had acted in the discharge of his official duties as being duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State"
merely an agent of the Drug Enforcement Administration of the United States Department of pursuant to the terms of the Vienna Convention.
Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and
expenses of litigation.

2
 CRIMINAL LAW I
DAY 3

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) Convention on Diplomatic Relations; and (3) that the United States Embassy repeatedly urged
whether or not the doctrine of conclusiveness of judgment, following the decision rendered the Department of Foreign Affairs to take appropriate action to inform the trial court of Scalzo’s
by this Court in G.R. No. 97765, should have precluded the CA from resolving the appeal to diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the
it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to PH govt itself, through its Exec Dept, recognizing and respecting the diplomatic status of
diplomatic immunity. Scalzo, formally advised the "Judicial Dept" of his diplomatic status and his entitlement to all
diplomatic privileges and immunities under the Vienna Convention; and (2) the DFA itself
authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require
consisting of his reports of investigation on the surveillance and subsequent arrest of
1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the
Minucher, the certification of the Drug Enforcement Administration of the United States
parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an identity
Department of Justice that Scalzo was a special agent assigned to the PH at all times relevant
of the parties, subject matter and causes of action.3 Even while one of the issues submitted
to the complaint, and the special power of attorney executed by him in favor of his previous
in G.R. No. 97765 - "whether or not public respondent CA erred in ruling that private
counsel6 to show (a) that the US Embassy, affirmed by its Vice Consul, acknowledged Scalzo
respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna
to be a member of the diplomatic staff of the United States diplomatic mission from his arrival
Convention on Diplomatic Relations" - is also a pivotal question raised in the instant petition,
in the PH on 14 Oct 1985 until his departure on 10 Aug 1988, (b) that, on May 1986, with the
the ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed, the
cooperation of the Philippine law enforcement officials and in the exercise of his functions as
Court there has made this observation -
member of the mission, he investigated Minucher for alleged trafficking in a prohibited drug,
and (c) that the Philippine DFA itself recognized that Scalzo during his tour of duty in the PH
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed (14 Oct 1985 up to 10 Aug 1988) was listed as being an Assistant Attaché of the United States
on 13 June 1990, unequivocally states that he would present documentary evidence diplomatic mission and accredited with diplomatic status by the PH govt. In his Exhibit 12,
consisting of DEA records on his investigation and surveillance of plaintiff and on his position Scalzo described the functions of the overseas office of the US Drugs Enforcement Agency,
and duties as DEA special agent in Manila. Having thus reserved his right to present i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
evidence in support of his position, which is the basis for the alleged diplomatic immunity, agencies on narcotic and drug control programs upon the request of the host country, 2) to
the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a establish and maintain liaison with the host country and counterpart foreign law enforcement
reasonable, intelligent and fair resolution of the issue of diplomatic immunity." 4 officials, and 3) to conduct complex criminal investigations involving int’l criminal conspiracies
which affect the interests of the United States.
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the PH is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the The Vienna Convention on Diplomatic Relations was a codification of centuries-old
United States Drugs Enforcement Agency as "conducting surveillance operations on customary law and, by the time of its ratification on 18 April 1961, its rules of law had long
suspected drug dealers in the PH believed to be the source of prohibited drugs being become stable. Among the city states of ancient Greece, among the peoples of the
shipped to the U.S., (and) having ascertained the target, (he then) would inform the Mediterranean before the establishment of the Roman Empire, and among the states of
Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court India, the person of the herald in time of war and the person of the diplomatic envoy in time
a number of documents - of peace were universally held sacrosanct.7 By the end of the 16th century, when the earliest
treatises on diplomatic law were published, the inviolability of ambassadors was firmly
established as a rule of customary int’l law.8Traditionally, the exercise of diplomatic
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990; intercourse among states was undertaken by the head of state himself, as being the
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990; preeminent embodiment of the state he represented, and the foreign secretary, the official
3. Exh. '5' - Diplomatic Note No. 757 dated 25 Oct 1991;
usually entrusted with the external affairs of the state. Where a state would wish to have a
4. Exh. '6' - Diplomatic Note No. 791 dated 17 Nov 1992; and more prominent diplomatic presence in the receiving state, it would then send to the latter a
5. Exh. '7' - Diplomatic Note No. 833 dated 21 Oct 1988. diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser,
mission involve, by and large, the representation of the interests of the sending state and
Department of Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. promoting friendly relations with the receiving state.9
414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3');
and The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
8. Exh. '8' - Letter dated 18 Nov 1992 from the Office of the Protocol, DFA, or nuncios accredited to the heads of state,10 (b) envoys,11 ministers
through Asst. Sec. Emmanuel Fernandez, addressed to the CJ of this Court or internuncios accredited to the heads of states; and (c) charges d' affairs 12 accredited to
the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads
The documents, according to Scalzo, would show that: (1) the United States Embassy of missions, as well as members of the diplomatic staff, excluding the members of the
accordingly advised the Exec Dept of the PH Govt that Scalzo was a member of the diplomatic
administrative, technical and service staff of the mission, are accorded diplomatic rank. Even
staff of the U.S. diplomatic mission from his arrival in the PH on 14 Oct 1985 until his departure while the Vienna Convention on Diplomatic Relations provides for immunity to the members
on 10 Aug 1988; (2) that the U.S. Govt was firm from the very beginning in asserting the of diplomatic missions, it does so, nevertheless, with an understanding that the same be
diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the Vienna
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested

3
 CRIMINAL LAW I
DAY 3

with blanket diplomatic immunity from civil and criminal suits. The Convention defines belated issuance is even suspect and whose authenticity has not yet been proved. The
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus undue haste with which respondent Court yielded to the private respondent's claim is
impliedly withholding the same privileges from all others. It might bear stressing that even arbitrary."
consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and
A significant document would appear to be Exhibit No. 08, dated 08 Nov 1992, issued by the
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C.
traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason
Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show
that they are not charged with the duty of representing their states in political matters.
that Mr. Arthur W. Scalzo, Jr., during his term of office in the PH (from 14 Oct 1985 up to 10
Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to
Aug 1988) was listed as an Assistant Attaché of the U.S. diplomatic mission and was,
immunity is the determination of whether or not he performs duties of diplomatic nature.
therefore, accredited diplomatic status by the Gt of the PH." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of
the United States diplomatic mission and was accredited as such by the PH Govt. An
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive
attaché belongs to a category of officers in the diplomatic establishment who may be in
branch of the govt. In World Health Organization vs. Aquino,15 the Court has recognized that,
charge of its cultural, press, administrative or financial affairs. There could also be a class of
in such matters, the hands of the courts are virtually tied. Amidst apprehensions of
attaches belonging to certain ministries or departments of the govt, other than the foreign
indiscriminate and incautious grant of immunity, designed to gain exemption from the
ministry or department, who are detailed by their respective ministries or departments with
jurisdiction of courts, it should behoove the Philippine govt, specifically its Department of
the embassies such as the military, naval, air, commercial, agricultural, labor, science, and
Foreign Affairs, to be most circumspect, that should particularly be no less than compelling,
customs attaches, or the like. Attaches assist a chief of mission in his duties and are
in its post litem motam issuances. It might be recalled that the privilege is not an immunity
administratively under him, but their main function is to observe, analyze and interpret trends
from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
and developments in their respective fields in the host country and submit reports to their
rather, an immunity from the exercise of territorial jurisdiction. 16 The govt of the United States
own ministries or depts in the home govt.14 These officials are not generally regarded as
itself, which Scalzo claims to be acting for, has formulated its standards for recognition of a
members of the diplomatic mission, nor are they normally designated as having diplomatic
diplomatic agent. The State Department policy is to only concede diplomatic status to a
rank.
person who possesses an acknowledged diplomatic title and "performs duties of diplomatic
nature."17 Supplementary criteria for accreditation are the possession of a valid diplomatic
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 passport or, from States which do not issue such passports, a diplomatic note formally
and 791, all issued post litem motam, respectively, on 29 May 1990, 25 Oct 1991 and 17 Nov representing the intention to assign the person to diplomatic duties, the holding of a non-
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No. immigrant visa, being over twenty-one years of age, and performing diplomatic functions on
97765, viz: an essentially full-time basis.18 Diplomatic missions are requested to provide the most
accurate and descriptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate functional
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
category.19
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption
that simply because of the diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person. But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
"x x x x x x x x x established that, indeed, he worked for the United States Drug Enforcement Agency and
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. was tasked to conduct surveillance of suspected drug activities within the country on the
Setting aside for the moment the issue of authenticity raised by the petitioner and the doubts dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well
that surround such claim, in view of the fact that it took private respondent one (1) year, within his assigned functions when he committed the acts alleged in the complaint, the
eight (8) months and seventeen (17) days from the time his counsel filed on 12 Sep 1988 a present controversy could then be resolved under the related doctrine of State Immunity
Special Appearance and Motion asking for a first extension of time to file the Answer from Suit.
because the Departments of State and Justice of the United States of America were
studying the case for the purpose of determining his defenses, before he could secure the
The precept that a State cannot be sued in the courts of a foreign state is a long-
Diplomatic Note from the US Embassy in Manila, and even granting for the sake of
standing rule of customary int’l law then closely identified with the personal immunity of a
argument that such note is authentic, the complaint for damages filed by petitioner cannot be
foreign sovereign from suit20 and, with the emergence of democratic states, made to attach
peremptorily dismissed.
not just to the person of the head of state, or his representative, but also distinctly to the
"x x x x x x x x x
state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
"There is of course the claim of private respondent that the acts imputed to him were done in
govt done by its foreign agent, although not necessarily a diplomatic personage, but acting
his official capacity. Nothing supports this self-serving claim other than the so-called
in his official capacity, the complaint could be barred by the immunity of the foreign
Diplomatic Note. x x x. The public respondent then should have sustained the trial court's
sovereign from suit without its consent. Suing a representative of a state is believed to be, in
denial of the motion to dismiss. Verily, it should have been the most proper and appropriate
effect, suing the state itself. The proscription is not accorded for the benefit of an individual
recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose
but for the State, in whose service he is, under the maxim - par in parem, non habet

4
 CRIMINAL LAW I
DAY 3

imperium - that all states are sovereign equals and cannot assert jurisdiction over one activities of suspected drug dealers in the PH), the consent or imprimatur of the Philippine
another.22 The implication, in broad terms, is that if the judgment against an official would govt to the activities of the United States Drug Enforcement Agency, however, can be
require the state itself to perform an affirmative act to satisfy the award, such as the gleaned from the facts heretofore elsewhere mentioned. The official exchanges of
appropriation of the amount needed to pay the damages decreed against him, the suit must communication between agencies of the govt of the two countries, certifications from officials
be regarded as being against the state itself, although it has not been formally impleaded. 23 of both the Philippine Department of Foreign Affairs and the United States Embassy, as well
as the participation of members of the Philippine Narcotics Command in the "buy-bust
operation" conducted at the residence of Minucher at the behest of Scalzo, may be
In United States of America vs. Guinto,24 involving officers of the United States Air Force and
inadequate to support the "diplomatic status" of the latter but they give enough indication
special officers of the Air Force Office of Special Investigators charged with the duty of
that the Philippine govt has given its imprimatur, if not consent, to the activities within
preventing the distribution, possession and use of prohibited drugs, this Court has ruled -
Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers
"While the doctrine (of state immunity) appears to prohibit only suits against the state without and, after having ascertained the target, to inform local law enforcers who would then be
its consent, it is also applicable to complaints filed against officials of the state for acts expected to make the arrest. In conducting surveillance activities on Minucher, later acting
allegedly performed by them in the discharge of their duties. x x x. It cannot for a moment be as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in
imagined that they were acting in their private or unofficial capacity when they apprehended the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the
and later testified against the complainant. It follows that for discharging their duties as scope of his official function or duties.
agents of the United States, they cannot be directly impleaded for acts imputable to their
principal, which has not given its consent to be sued. x x x As they have acted on behalf of All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the
the govt, and within the scope of their authority, it is that govt, and not the petitioners United States Drug Enforcement Agency allowed by the PH govt to conduct activities in the
personally, [who were] responsible for their acts."25 country to help contain the problem on the drug traffic, is entitled to the defense of state
immunity from suit.
This immunity principle, however, has its limitations. Thus, Shauf vs. CA26 elaborates:
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs. SO
"It is a different matter where the public official is made to account in his capacity as such for ORDERED.
acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. Territoriality, and exceptions
(33 SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, [RPC] Article 2. Application of its provisions. - Except as provided in the
unauthorized acts of govt officials or officers are not acts of the State, and an action against treaties and laws of preferential application, the provisions of this Code shall be
the officials or officers by one whose rights have been invaded or violated by such acts, for enforced not only within the Philippine Archipelago, including its atmosphere, its
the protection of his rights, is not a suit against the State within the rule of immunity of the interior waters and maritime zone, but also outside of its jurisdiction, against those
State from suit. In the same tenor, it has been said that an action at law or suit in equity who:
against a State officer or the director of a State department on the ground that, while 1. Should commit an offense while on a Philippine ship or airship
claiming to act for the State, he violates or invades the personal and property rights of the 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or
plaintiff, under an unconstitutional act or under an assumption of authority which he does not obligations and securities issued by the Govt of the Philippine Islands;
have, is not a suit against the State within the constitutional provision that the State may not 3. Should be liable for acts connected with the introduction into these islands of the
be sued without its consent. The rationale for this ruling is that the doctrine of state immunity obligations and securities mentioned in the presiding number;
cannot be used as an instrument for perpetrating an injustice. 4. While being public officers or employees, should commit an offense in the exercise of
"x x x x x x x x x their functions; or
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public 5. Should commit any of the crimes against national security and the law of nations, defined
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of in Title One of Book Two of this Code.
protection afforded the officers and agents of the govt is removed the moment they are sued
in their individual capacity. This situation usually arises where the public official acts without EN BANC
authority or in excess of the powers vested in him. It is a well-settled principle of law that a
public official may be liable in his personal private capacity for whatever damage he may G.R. No. L-5887. Dec 16, 1911
have caused by his act done with malice and in bad faith or beyond the scope of his USA, Plaintiff-Appellee, v. LOOK CHAW (alias LUK CHIU), Defendant-Appellant.
authority and jurisdiction."27 Thos. D. Aitken for Appellant. Attorney-General Villamor for Appellee.
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only
as long as it can be established that he is acting within the directives of the sending state. SYLLABUS
The consent of the host state is an indispensable requirement of basic courtesy between the 1. SHIPS AND SHIPPING; OPIUM IN TRANSIT; LANDING OF CONTRABAND GOODS;
two sovereigns. Guinto and Shauf both involve officers and personnel of the United States, JURISDICTION. — Although the mere possession of an article of prohibited use in the
stationed within Philippine territory, under the RP-US Military Bases Agreement. While Philippine Islands, aboard a foreign vessel in transit, in any local port, does not, as a general
evidence is wanting to show any similar agreement between the govts of the PH and of the rule, constitute a crime triable by the courts of the Islands, such vessel being considered as
United States (for the latter to send its agents and to conduct surveillance and related an extension of its own nationality, the same rule does not apply when the article, the use of

5
 CRIMINAL LAW I
DAY 3

which is prohibited in the Islands, is landed from the vessel upon Philippine soil; in such a
case an open violation of the laws of the land is committed, with respect to which, as it is a "WITNESS. It is a can opium which was bought from the defendant by a secret-service
violation of the penal law in force at the place of the commission of the crime, no court other agent and taken to the office of the governor to prove that the accused had opium in his
than that established in the said place has jurisdiction of the offense, in the absence of an possession to sell." library
agreement under an int’l treaty.
DECISION On motion by the defense, the court ruled that this answer might be stricken out "because it
ARELLANO, C.J. : refers to a sale." But, with respect to this answer, the chief of the department of customs had
already given this testimony, to wit:

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated "FISCAL. Who asked you to search the vessel?
that he "carried, kept, possessed and had in his possession and control, 96 kg of opium,"
and that "he had been surprised in the act of selling 1,000 pesos worth prepared opium." "WITNESS. The internal-revenue agent came to my office and said that a party brought him
a sample of opium and that the same party knew that there was more opium on board the
The defense presented a demurrer based on two grounds, the second of which was the steamer, and the agent asked that the vessel be searched." library
more than one crime was charged in the complaint. The demurrer was sustained, as the
court found that the complaint contained two charges, one, for the unlawful possession of The defense moved that this testimony be rejected, on the ground of its being hearsay
opium, and the other, for the unlawful sale of opium, and, consequence of that ruling, it evidence, and the court only ordered that the part thereof "that there was more opium, on
ordered that the fiscal should separated one charge from the other and file a complaint for board the vessel" be stricken out.
each violation; this, the fiscal did, and this cause concerns only the unlawful possession of
opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on The defense, to abbreviate proceedings, admitted that the receptacles mentioned as
the general docket of this court. Exhibits A, B, and C, contained opium and were found on board the steamship Erroll, a
vessel of English nationality, and that it was true that the defendant stated that these sacks
The facts of the case are contained in the following finding of the trial court: of opium were his and that he had them in his possession.

"The evidence, it says, shows that between 11 and 12 o’clock a. m. on the present month According to the testimony of the internal-revenue agent, the defendant stated to him, in the
(stated as Aug 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not needed,
the department of the port of Cebu and internal-revenue agent of Cebu, respectively, went because the defendant spoke English), the warden of the jail, and four guards, that the
abroad the steamship Erroll to inspect and search its cargo, and found, first in a cabin near opium seized in the vessel had been bought by him in Hongkong, at three pesos for each
the saloon, one sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The round can and five pesos for each one of the others, for the purpose of selling it, as
sack referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B, the larger contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu,
sack, also contained several cans of the same substance. The hold, in which the sack and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he
mentioned in Exhibit B was found, was under the defendant’s control, who moreover, freely had a contract to sell an amount of the value of about P500; that the opium found in the
and of his own will and accord admitted that this sack, as well as the other referred to in room of the other two Chinamen prosecuted in another cause, was his, and that he had left it
Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and in their stateroom to avoid its being found in his room, which had already been searched
voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of many times; and that, according to the defendant, the contents of the large sack was 80
selling them as contraband in Mexico or Vera Cruz, and that, as his hold had already been cans of opium, and of the small one, 49, and the total number, 129.
searched several times for opium, he ordered two other Chinamen to keep the sack. Exhibit
A." library It was established that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B,
properly constitute the corpus delicti. Moreover, another lot of four cans of opium, marked, The defense moved for a dismissal of the case, on the grounds that the court had no
as Exhibit C, was the subject matter of investigation at the trial, and with respect to which the jurisdiction to try the same and the facts concerned therein did not constitute a crime. The
chief of the department of the port of Cebu testified that they were found in the part of the fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be
ship where the firemen habitually sleep, and that they were delivered to the first officer of the imposed upon the defendant, in view of the considerable amount of opium seized. The court
ship to be returned to the said firemen after the vessel should have left the PH, because the ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its
firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila district, on the wharf of Cebu.
custom-house, were permitted to retain certain amounts of opium, always provided it should
not be taken shore. The court sentenced the defendant to five years’ imprisonment, to pay a fine of P10,000,
with additional subsidiary imprisonment in case of insolvency, though not to exceed one third
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as of the principal penalty, and to the payment of the costs. It further ordered the confiscation,
evidence in this cause. With regard to this the internal-revenue agent testified as follows: in favor of the Insular Govt, of the exhibits presented in the case, and that, in the event of an
appeal being taken or a bond given, or when the sentenced should have been served, the
"FISCAL. What is it? defendant be not released from custody, but turned over to the customs authorities for the

6
 CRIMINAL LAW I
DAY 3

purpose of the fulfillment of the existing laws on immigration. Two decisions of this Court are cited in the judgment of the trial court, but with the intimation
that there exists inconsistently between the doctrines laid down in the two cases. However,
From this judgment, the defendant appealed to this court. neither decision is directly a precedent on the facts before us.

The appeal having been heard, together with the allegations made therein by the parties, it
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed
is found: That, although the mere possession of a thing of prohibited use in these Islands,
down by the Chief Justice, it is found —
aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute
a crime triable by the courts of this country, on account of such vessel being considered as
an extension of its own nationality, the same rule does not apply when the article, whose use That, although the mere possession of a thing of prohibited use in these Islands, aboard a
is prohibited within the Philippine Islands, in the present case a can of opium, is landed from foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime
the vessel upon Philippine soil, thus committing an open violation of the laws of the land, triable by the courts of this country, on account of such vessel being considered as an
with respect to which, as it is a violation of the penal law in force at the place of the extension of its own nationality, the same rule does no apply when the article, whose use is
commission of the crime, only the court established in that said place itself had competent prohibited within the PH Islands, in the present case a can of opium, is landed from the
jurisdiction, in the absence of an agreement under an int’l treaty. vessel upon PH soil, thus committing an open violation of the laws of the land, with respect
to which, as it is a violation of the penal law in force at the place of the commission of the
It is also found: That, even admitting that the quantity of the drug seized, the subject matter crime, only the court established in the said place itself has competent jurisdiction, in the
of the present case, was considerable, it does not appear that, on such account, the two absence of an agreement under an intl treaty.
penalties fixed by the law on the subject, should be imposed in the maximum degree.
A marked difference between the facts in the Look Chaw case and the facts in the present
Therefore, reducing the imprisonment and the fine imposed to six months and P1,000,
respectively, we affirm in all other respects the judgment appealed from, with the costs of instance is readily observable. In the Look Chaw case, the charge case the illegal
this instance against the Appellant. So ordered. possession and sale of opium — in the present case the charge as illegal importation of
opium; in the Look Chaw case the foreign vessel was in transit — in the present case the
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur. foreign vessel was not in transit; in the Look Chaw case the opium was landed from the
vessel upon PH soil — in the present case of United States vs. Jose ([1916], 34 Phil., 840),
the main point, and the one on which resolution turned, was that in a prosecution based on
EN BANC
G.R. No. L-13005 Oct 10, 1917 the illegal importation of opium or other prohibited drug, the Govt must prove, or offer
THE UNITED STATES, plaintiff-appellee, vs. AH SING, defendant-appellant. evidence sufficient to raise a presumption, that the vessel from which the drug is discharged
Antonio Sanz for appellant. Acting Attorney-General Paredes for appellee. came into PH waters from a foreign country with the drug on board. In the Jose case, the
defendants were acquitted because it was not proved that the opium was imported from a
MALCOLM, J.: foreign country; in the present case there is no question but what the opium came from
Saigon to Cebu. However, in the opinion in the Jose case, we find the following which may
be obiter dicta, but which at least is interesting as showing the view of the writer of the
This is an appeal from a judgment of the Court of First Instance of Cebu finding the opinion:
defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and sentencing
him to two years imprisonment, to pay a fine of P300 or to suffer subsidiary imprisonment in
case of insolvency, and to pay the costs. The importation was complete, to say the least, when the ship carrying it anchored
in Subic Bay. It was not necessary that the opium discharged or that it be taken
from the ship. It was sufficient that the opium was brought into the waters of the
The following facts are fully proven: The defendant is a subject of China employed as a Philippine Islands on a boat destined for a Philippine port and which subsequently
fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived anchored in a port of the Philippine Islands with intent to discharge its cargo.
at the port of Cebu on April 25, 1917, after a voyage direct from the port of Saigon. The
defendant bought eight cans of opium in Saigon, brought them on board the steamship Shun
Chang, and had them in his possession during the trip from Saigon to Cebu. When the Resolving whatever doubt was exist as to the authority of the views just quoted, we return to
an examination of the applicable provisions of the law. It is to be noted that section 4 of Act
steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search
found the eight cans of opium above mentioned hidden in the ashes below the boiler of the No. 2381 begins, "Any person who shall unlawfully import or bring any prohibited drug into
steamer's engine. The defendant confessed that he was the owner of this opium, and that the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of
the United States have held that the mere act of going into a port, without breaking bulk,
he had purchased it in Saigon. He did not confess, however, as to his purpose in buying the
opium. He did not say that it was his intention to import the prohibited drug into the PH is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And
Islands. No other evidence direct or indirect, to show that the intention of the accused was to again, the importation is not the making entry of goods at the custom house, but merely the
bringing them into port; and the importation is complete before entry of the Custom House.
import illegally this opium into the PH Islands, was introduced.
(U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
applied to the Opium Law, we expressly hold that any person unlawfully imports or brings
Has the crime of illegal importation of opium into the Philippine Islands been proven? any prohibited drug into the Philippine Islands, when the prohibited drug is found under this

7
 CRIMINAL LAW I
DAY 3

person's control on a vessel which has come direct from a foreign country and is within the In May of 2007, BBB started working in Singapore as a chef, where he acquired permanent
jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal resident status in Sep 2008. This petition nonetheless indicates his address to be in QC
importation of the drug unless contrary circumstances exist or the defense proves otherwise. where his parents reside and where AAA also resided from the time they were married until
Applied to the facts herein, it would be absurb to think that the accused was merely carrying March of 2010, when AAA and their children moved back to her parents' house in Pasig
opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would City.
likewise be impossible to conceive that the accused needed so large an amount of opium for AAA claimed, albeit not reflected in the Information, that BBB sent little to no financial
his personal use. No better explanation being possible, the logical deduction is that the support, and only sporadically. This allegedly compelled her to fly extra hours and take on
defendant intended this opium to be brought into the Philippine Islands. We accordingly find additional jobs to augment her income as a flight attendant. There were also allegations of
that there was illegal importation of opium from a foreign country into the Philippine Islands. virtual abandonment, mistreatment of her and their son CCC, and physical and sexual
To anticipate any possible misunderstanding, let it be said that these statements do not violence. To make matters worse, BBB supposedly started having an affair with a
relate to foreign vessels in transit, a situation not present. Singaporean woman named Lisel Mok with whom he allegedly has been living in Singapore.
Things came to a head on April 19, 2011 when AAA and BBB had a violent altercation at a
hotel room in Singapore during her visit with their kids.[8] As can be gathered from the earlier
The defendant and appellant, having been proved guilty beyond a reasonable doubt as
cited Information, despite the claims of varied forms of abuses, the investigating prosecutor
charged and the sentence of the trial court being within the limits provided by law, it results
found sufficient basis to charge BBB with causing AAA mental and emotional anguish
that the judgment must be affirmed with the costs of this instance against the appellant. So
through his alleged marital infidelity.
ordered. Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
The Information having been filed, a warrant of arrest was issued against BBB. AAA was
Crimes in int’l law also able to secure a Hold-Departure Order against BBB who continued to evade the
Some SPLs (Terrorism, trafficking, data privacy) warrant of arrest. Consequently, the case was archived. [10]

On Nov 6, 2013, an Entry of Appearance as Counsel for the Accused With Omnibus Motion
FIRST DIVISION to Revive Case, Quash Information, Lift Hold Departure Order and Warrant of Arrest[11] was
G.R. No. 212448. Jan 11, 2018 filed on behalf of BBB. Granting the motion to quash on the ground of lack of jurisdiction and
AAA, PETITIONER, V. BBB, RESPONDENT thereby dismissing the case, the trial court reasoned:
DECISION
Here, while the Court maintains its 28 Oct 2011 ruling that probable cause exists in this case
TIJAM, J.: and that [BBB] is probably guilty of the crime charged, considering, however, his subsequent
May Philippine courts exercise jurisdiction over an offense constituting psychological clear showing that the acts complained of him had occurred in Singapore, dismissal of this
violence under RA 9262,[1] otherwise known as the Anti-Violence Against Women and their case is proper since the Court enjoys no jurisdiction over the offense charged, it having
Children Act of 2004, committed through marital infidelity, when the alleged illicit relationship transpired outside the territorial jurisdiction of this Court.
occurred or is occurring outside the country? xxxx
The Court is not convinced by the prosecution's argument that since [AAA] has been
The above question is addressed to this Court in the present Petition[2] for the issuance of a suffering from mental and emotional anguish "wherever she goes", jurisdiction over the
writ of certiorari under Rule 45 of the Rules of Court, to nullify the Resolutions dated offense attaches to this Court notwithstanding that the acts resulting in said suffering had
February 24, 2014[3] and May 2, 2014[4] of the RTC of Pasig City, Branch 158, in Criminal happened outside of the PH. To the mind of the Court, with it noting that there is still as yet
Case No. 146468. The assailed resolutions granted the motion to quash the no jurisprudence on this score considering that RA 9262 is relatively a new law, the act itself
Information[5] which charged respondent BBB under Sec. 5(i) of RA 9262, committed as which had caused a woman to suffer mental or emotional anguish must have occurred within
follows: the territorial limits of the Court for it to enjoy jurisdiction over the offense. This amply
explains the use of the emphatic word "causing" in the provisions of Sec. 5(i), above, which
On or about April 19, 2011, in Pasig City, and within the jurisdiction of this Honorable Court, denotes the bringing about or into existence of something. Hence, the mental or emotional
[BBB], being then legally married to [AAA], caused herein [AAA] mental and emotional anguish suffered by a woman must have been brought about or into existence by a criminal
anguish by having an illicit relationship with a certain Lisel Mok as confirmed by his act which must logically have occurred within the territorial limits of the Court for jurisdiction
photograph with his purported paramour Lisel Mok and her children and the e-mailed letter over the offense to attach to it. To rule otherwise would violate or render nugatory one of the
by his mother mentioning about the said relationship, to the damage and prejudice of [AAA], basic characteristics of our criminal laws - territoriality.
in violation of the aforecited law.
In the listing provided in the law itself - "repeated verbal and emotional abuse, and denial of
Contrary to law. financial support or custody of minor children of (sic) access to the woman's child/children"-
We briefly recount the antecedents. it becomes clear that there must be an act which causes the "mental or emotional anguish,
public ridicule or humiliation", and it is such act which partakes of a criminal nature. Here,
Petitioner AAA and BBB were married on Aug 1, 2006 in Quezon City. Their union produced such act was the alleged maintenance of "an illicit relationship with a certain Liesel Mok"
two children: CCC was born on March 4, 2007 and DDD on Oct 1, 2009. which has been conceded to have been committed in Singapore.

8
 CRIMINAL LAW I
DAY 3

Granting, without conceding, that the law presents ambiguities as written, quashal of the
Information must still be ordered following the underlying fundamental principle that all We find that under the circumstances, the ends of substantial justice will be better served by
doubts must be resolved in favor of [BBB]. At best, the Court draws the attention of entertaining the petition if only to resolve the question of law lodged before this Court.
Congress to the arguments on jurisdiction spawned by the law. [12] (Emphasis in the original) In Morillo v. People of the PH, et al.,[17] where the Court entertained a Rule 45 petition which
raised only a question of law filed by the private offended party in the absence of the OSG's
Aggrieved by the denial of the prosecution’s motion for reconsideration of the dismissal of participation, we recalled the instances when the Court permitted an offended party to file an
the case, AAA sought direct recourse to this Court via the instant petition on a pure question appeal without the intervention of the OSG. One such instance is when the interest of
of law. AAA posits that RA 9262 is in danger of becoming transmogrified into a weak, substantial justice so requires.[18]
wobbly, and worthless law because with the court a quo's ruling, it is as if husbands of Morillo,[19] also differentiated between dismissal and acquittal, thus:
Filipino women have been given license to enter into extra-marital affairs without fear of any
consequence, as long as they are carried out abroad. In the main, AAA argues that mental Acquittal is always based on the merits, that is, the defendant is acquitted because
and emotional anguish is an essential element of the offense charged against BBB, which is the evidence does not show that defendant's guilt is beyond a reasonable doubt; but
experienced by her wherever she goes, and not only in Singapore where the extra-marital dismissal does not decide the case on the merits or that the defendant is not guilty.
affair takes place; thus, the RTC of Pasig City where she resides can take cognizance of the Dismissal terminates the proceeding, either because the court is not a court of
case. competent jurisdiction, or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or the complaint or
In support of her theory, AAA draws attention to Sec. 7 of RA 9262, which provides: information is not valid or sufficient in form and substance, etc.

Sec. 7. Venue - The RTC designated as a Family Court shall have original and exclusive The only case in which the word dismissal is commonly but not correctly used, instead of the
jurisdiction over cases of violence against women and their children under this law. In the proper term acquittal, is when, after the prosecution has presented all its evidence, the
absence of such court in the place where the offense was committed, the case shall be filed defendant moves for the dismissal and the court dismisses the case on the ground that the
in the RTC where the crime or any of its elements was committed at the option of the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such
complainant. (Emphasis ours) case the dismissal is in reality an acquittal because the case is decided on the merits. If the
As to the ambiguity in the law hypothetically referred to in the assailed order, AAA directs us prosecution fails to prove that the offense was committed within the territorial
to: jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal,
inasmuch as if it were so the defendant could not be again prosecuted before the
court of competent jurisdiction; and it is elemental that in such case, the defendant
Sec. 4. Construction. - This Act shall be liberally construed to promote the protection and may again be prosecuted for the same offense before a court of competent
safety of victims of violence against women and their children. jurisdiction.[20](Citation omitted and emphasis in the original)
In his Comment[13] filed on Jan 20, 2015, BBB contends that the grant of the motion to quash The grant of BBB's motion to quash may not therefore be viewed as an acquittal, which in
is in effect an acquittal; that only the civil aspect of a criminal case may be appealed by the limited instances may only be repudiated by a petition for certiorari under Rule 65 upon
private offended party; and. that this petition should be dismissed outright for having been showing grave abuse of discretion lest the accused would be twice placed in jeopardy. [21]
brought before this Court by AAA instead of the Office of the Solicitor General (OSG) as Indubitably, "the Rules do not prohibit any of the parties from filing a Rule 45 Petition with
counsel for the People in appellate proceedings. BBB furthermore avers that the petition was this Court, in case only questions of law are raised or involved."[22] "There is a question of
belatedly filed. law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns
We tackle first the threshold issue of whether or not this Court should entertain the petition. the correct application of law and jurisprudence on the matter."[23]
Further, the question of whether or not the RTC has jurisdiction in view of the peculiar
It must be stated beforehand that BBB is plainly mistaken in asserting that the instant provisions of RA 9262 is a question of law. Thus, in Morillo,[24] the Court reiterated that:
petition was belatedly filed. The date erroneously perceived by BBB as the date of AAA's
Motion for Extension[14] was filed - June 2, 2014 - refers to the date of receipt by the Division [T]he jurisdiction of the court is determined by the averments of the complaint or Information,
Clerk of Court and not the date when the said motion was lodged before this Court. The in relation to the law prevailing at the time of the filing of the complaint or Information, and
motion was in fact filed on May 27, 2014, well within the period that AAA had under the the penalty provided by law for the crime charged at the time of its commission. Thus, when
Rules of Court to file the intended petition. Thus, considering the timeliness of the motion, a case involves a proper interpretation of the rules and jurisprudence with respect to the
this Court in a Resolution[15] dated June 9, 2014, granted AAA an additional period of thirty jurisdiction of courts to entertain complaints filed therewith, it deals with a question of law
(30) days or until June 26, 2014 to file a petition for review. that can be properly brought to this Court under Rule 45.[25] (Citations omitted)
In AAA's motion for extension of time, it was mentioned that she was awaiting the OSG's We are not called upon in this case to determine the truth or falsity of the charge against
response to her Letter dated May 26, 2014 requesting for representation. Since, the OSG was BBB, much less weigh the evidence, especially as the case had not even proceeded to a
unresponsive to her plea for assistance in filing the intended petition, AAA filed the present full-blown trial on the merits. The issue for resolution concerns the correct application of law
petition in her own name before the lapse of the extension given her by this Court or on June and jurisprudence on a given set of circumstances, i.e., whether or not Philippine courts are
25, 2014. deprived of territorial jurisdiction over a criminal charge of psychological abuse under RA

9
 CRIMINAL LAW I
DAY 3

9262 when committed through marital infidelity and the alleged illicit relationship took place As jurisdiction of a court over the criminal ease is determined by the allegations in the
outside the PH. complaint or information, threshing out the essential elements of psychological abuse under
RA 9262 is crucial. In Dinamling v. People,[31] this Court already had occasion to enumerate
The novelty of the issue was even recognized by the RTC when it opined that there is still as the elements of psychological violence under Sec. 5(i) of RA 9262, as follows:
yet no jurisprudence on this score, prompting it to quash the Information even as it Sec. 5. Acts of Violence Against Women and Their Children. - The crime of violence against
maintained its earlier Oct 28, 2011 ruling that probable cause exists in the case.[26] Calling women and their children is committed through any of the following acts:
the attention of Congress to the arguments on jurisdiction spawned by the law, [27] the RTC xxxx
furnished copies of the assailed order to the House of Representatives and the Philippine
Senate through the Committee on Youth, Women and Public Relations, as well as the
Committee on Justice and Human Rights.[28] (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and
The issue acquires special significance when viewed against the present economic reality denial of financial support or custody of minor children or access to the woman's
that a great number of Filipino families have at least one parent working overseas. In April to child/children.
Sep 2016, the number of overseas Filipino workers who worked abroad was estimated at From the aforequoted Sec. 5(i), in relation to other sections of RA 9262, the elements of the
2.2 million, 97.5 percent of which were comprised of overseas contract workers or those with crime are derived as follows:
existing work contract; while 2.5 percent worked overseas without contract. [29] It is thus
necessary to clarify how RA 9262 should be applied in a question of territorial jurisdiction
over a case of psychological abuse brought against the husband when such is allegedly (1) The offended party is a woman and/or her child or children;
caused by marital infidelity carried on abroad.
(2) The woman is either the wife or former wife of the offender, or is a woman with whom
Ruling of the Court the offender has or had a sexual or dating relationship, or is a woman with whom
There is merit in the petition. such offender has a common child. As for the woman's child or children, they may be
legitimate or illegitimate, or living within or without the family abode;
(3) The offender causes on the woman and/or child mental or emotional anguish;
"Physical violence is only the most visible form of abuse. Psychological abuse, particularly and
forced social and economic isolation of women, is also common." [30] In this regard, Sec. 3 of
(4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal
RA 9262 made it a point to encompass in a non-limiting manner the various forms of and emotional abuse, denial of financial support or custody of minor children or
violence that may be committed against women and their children: access to the children or similar such acts or omissions.
Sec. 3. Definition of Terms.- As used in this Act,
(a) "Violence against women and their children" refers to any act or a series of xxxx
acts committed by any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or with whom he It bears emphasis that Sec. 5(i) penalizes some forms of psychological violence that are
has a common child, or against her child whether legitimate or illegitimate, within or without inflicted on victims who are women and children. Other forms of psychological violence, as
the family abode, which result in or is likely to result in physical, sexual, psychological well as physical, sexual and economic violence, are addressed and penalized in other sub-
harm or suffering, or economic abuse including threats of such acts, battery, assault, parts of Sec. 5.
coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the xxxx
following acts:
A. "Physical Violence" refers to acts that include bodily or physical
harm; Psychological violence is an element of violation of Sec. 5(i) just like the mental or
B. "Sexual violence" refers to an act which is sexual in nature, emotional anguish caused on the victim. Psychological violence is the means
committed against a woman or her child. It includes, but is not limited to: employed by the perpetrator, while mental or emotional anguish is the effect caused
xxxx to or the damage sustained by the offended party. To establish psychological violence as
C. "Psychological violence" refers to acts or omissions causing or an element of the crime, it is necessary to show proof of commission of any of the acts
likely to cause mental or emotional suffering of the victim such as but not limited to enumerated in Sec. 5(i) or similar such acts. And to establish mental or emotional anguish, it
intimidation, harassment, stalking, damage to property, public ridicule or is necessary to present the testimony of the victim as such experiences are personal to this
humiliation, repeated verbal abuse and marital infidelity. It includes causing or party. x x x.[32] (Citations omitted and emphasis ours)
allowing the victim to witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to witness pornography in Contrary to the interpretation of the RTC, what RA 9262 criminalizes is not the marital
any form or to witness abusive injury to pets or to unlawful or unwanted infidelity per se but the psychological violence causing mental or emotional suffering on the
deprivation of the right to custody and/or visitation of common children. wife. Otherwise stated, it is the violence inflicted under the said circumstances that the law
D. "Economic abuse" refers to acts that make or attempt to make a seeks to outlaw. Marital infidelity as cited in the law is only one of the various acts by which
woman financially dependent which includes, but is not limited to the following: psychological violence may be committed. Moreover, depending on the circumstances of the
xxxx spouses and for a myriad of reasons, the illicit relationship may or may not even be causing

10
 CRIMINAL LAW I
DAY 3

mental or emotional anguish on the wife. Thus, the mental or emotional suffering of the Certainly, the act causing psychological violence which under the information relates to
victim is an essential and distinct element in the commission of the offense. BBB's marital infidelity must be proven by probable cause for the purpose of formally
In criminal cases, venue is jurisdictional. Thus, in Treñas v. People,[33] the Court explained charging the husband, and to establish the same beyond reasonable doubt for purposes of
that: conviction. It likewise remains imperative to acquire jurisdiction over the husband. What this
case concerns itself is simply whether or not a complaint for psychological abuse under RA
The place where the crime was committed determines not only the venue of the action 9262 may even be filed within the PH if the illicit relationship is conducted abroad. We say
but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to that even if the alleged extra marital affair causing the offended wife mental and emotional
be acquired by courts in criminal cases, the offense should have been committed or any one anguish is committed abroad, the same does not place a prosecution under RA 9262
of its essential ingredients should have taken place within the territorial jurisdiction of the absolutely beyond the reach of Philippine courts.
court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction
to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it
cannot take jurisdiction over a person charged with an offense allegedly committed outside IN VIEW OF THE FOREGOING, the petition is GRANTED. The Resolutions dated February
of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is 24, 2014 and May 2, 2014 of the RTC of Pasig City, Branch 158, in Criminal Case No.
determined by the allegations in the complaint or information. And once it is so shown, 146468 are SET ASIDE. Accordingly, the Information filed in Criminal Case No. 146468 is
the court may validly take cognizance of the case. However, if the evidence adduced ordered REINSTATED. SO ORDERED. Sereno, C.J., (Chairperson), Leonardo-De Castro,
during the trial shows that the offense was committed somewhere else, the court Del Castillo, and Jardeleza, JJ., concur.
should dismiss the action for want of jurisdiction.[34] (Emphasis in the original)

In Sec. 7 of RA 9262, venue undoubtedly pertains to jurisdiction. As correctly pointed out by Prospectivity
AAA, Sec. 7 provides that the case may be filed where the crime or any of its elements was Exception: ARTICLE 22. Retroactive Effect of Penal Laws.
committed at the option of the complainant. While the psychological violence as the means — Penal laws shall have a retroactive effect in so far as they favor the person guilty of a
employed by the perpetrator is certainly an indispensable element of the offense, equally felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this
essential also is the element of mental or emotional anguish which is personal to the Code, although at the time of the publication of such laws a final sentence has been
complainant. The resulting mental or emotional anguish is analogous to the indispensable pronounced and the convict is serving the same.
element of damage in a prosecution for estafa, viz: Even SC Decisions
EN BANC
The circumstance that the deceitful manipulations or false pretenses employed by the G.R. No. 217874
accused, as shown in the vouchers, might have been perpetrated in Quezon City does not OPHELIA HERNAN, Petitioner, vs. THE HONORABLE SANDIGANBAYAN,, Respondent
preclude the institution of the criminal action in Mandaluyong where the damage was DECISION
consummated. Deceit and damage are the basic elements of estafa.
PERALTA, J.:
The estafa involved in this case appears to be a transitory or continuing offense. It could be
filed either in Quezon City or in Rizal. The theory is that a person charged with a transitory Before the Court is a special civil action for certiorari under Rule 65 of the Rules of Court
offense may be tried in any jurisdiction where the offense is in part committed. In transitory seeking to reverse and set aside the Resolution1 dated February 2, 2015 and
or continuing offenses in which some acts material and essential to the crime and requisite Decision2 dated Nov 13, 2009 of the Sandiganbayan 2nd Division which affirmed, with
to its consummation occur in one province and some in another, the court of either province modification, the Decision dated June 28, 2002 of the RTC ,Branch 7, Baguio City convicting
has jurisdiction to try the case, it being understood that the first court taking cognizance of petitioner of the crime of malversation of public funds in Criminal Case No. 15722-R.
the case will exclude the others x x x[.][35]
What may be gleaned from Sec. 7 of RA 9262 is that the law contemplates that acts of
violence against women and their children may manifest as transitory or continuing crimes; The antecedent facts are as follows:
meaning that some acts material and essential thereto and requisite in their consummation
occur in one municipality or territory, while some occur in another. In such cases, the court In Oct 1982, petitioner Ophelia Hernan joined the Department of Transportation and
wherein any of the crime's essential and material acts have been committed maintains Communication (DOTC),Cordillera Administrative Region (CAR) in Baguio City wherein she
jurisdiction to try the case; it being understood that the first court taking cognizance of the served as an accounting clerk. In Sep 1984, she was promoted to the position of
same excludes the other. Thus, a person charged with a continuing or transitory crime may Supervising Fiscal Clerk by virtue of which she was designated as cashier, disbursement
be validly tried in any municipality or territory where the offense was in part committed. [36] and collection officer.3 As such, petitioner received cash and other collections from
It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act of customers and clients for the payment of telegraphic transfers, toll foes, and special
violence under Sec. 5(i) of RA 9262 in relation to Sec. 3(a), Paragraph (C) was committed message fees. The collections she received were deposited at the bank account of the
outside Philippine territory, that the victim be a resident of the place where the complaint is DOTC at the Land Bank of the PH (LBP), Baguio City Branch.4
filed in view of the anguish suffered being a material element of the offense. In the present
scenario, the offended wife and children of respondent husband are residents of Pasig City
since March of 2010. Hence, the RTC of Pasig City may exercise jurisdiction over the case.

11
 CRIMINAL LAW I
DAY 3

On Dec 17, 1996, Maria Imelda Lopez, an auditor of the COA, conducted a cash On Sep 19, 1996, petitioner and her supervisor, Cecilia Paraiso, went to the LBP Baguio
examination of the accounts handled by petitioner as instructed by her superior, Sherelyn branch and personally deposited the exact amount of ₱11,300.00 with accomplished deposit
Narag. As a result, Lopez came across deposit slips dated Sep 19, 1996 and Nov 29, 1996 slips in six (6) copies.13 Since there were many clients who came ahead of her, she decided
bearing the amounts of ₱11,300.00 and ₱81,348.20, rcspectively. Upon close scrutiny, she to go with her usual arrangement of leaving the money with the teller and telling her that she
noticed that said deposit slips did not bear a stamp of receipt by the LBP nor was it machine would just come back to retrieve the deposit slip. Thus, she handed the money to Teller No.
validated. Suspicious about what she found, she and Narag verified all the reports and other 2, whom she identified as Catalina Ngaosi. Upon her return at around 3 o'clock in the
documents turned-over to them by petitioner.6 On the basis of said findings, Narag sent a afternoon, she retrieved four (4) copies of the deposit slip from Ngaosi. She noticed that the
letter to the LBP to confirm the remittances made by petitioner. After adding all the deposits same had no acknowledgment mark on it. Being contented with the initials of the teller on
made and upon checking with the teller's blotter, Nadelline Orallo, the resident auditor of the deposit slips, she returned to her office and kept them in her vault. It was only during the
LBP, found that no deposits were made by petitioner for the account of DOTC on Sep 19, cash count conducted by auditor Lopez when she found out that the said amount was not
1996 for the amount of ₱11,300.00 and Nov 29, 1996 for the amount of ₱81,340.20.7 remitted to the account of the LBP. When demand was made on her to return the amount,
she requested that she be allowed to pay only after investigation of a complaint of Estafa
that she would file with the NBI against some personnel of the bank, particularly Catalina
Thereafter, the LBP's officer-in-charge, Rebecca R. Sanchez, instructed the bank's teller,
Ngaosi. The complaint, however, was eventually dismissed.15
Catalina Ngaosi, to conduct their own independent inquiry. It was discovered that on Sep 19,
1996, the only deposit in favor of the DOTC was that made by its Ifugao office in the Lagawe
branch of the LBP.8 This prompted Lopez to write to petitioner informing her that the two (2) After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in
aforesaid remittances were not acknowledged by the bank. The auditors then found that the Information. The dispositive portion of the decision states:
petitioner duly accounted for the ₱81,348.20 remittance but not for the ₱11,300.00.
Dissatisfied with petitioner's explanation as to the whereabouts of the said remittance, Narag
WHEREFORE, in view of all the foregoing, judgment is hereby rendered convicting accused
reported the matter to the COA Regional Director who, in turn wrote to the LBP for
Ophelia Hernan of Malversation and hereby sentences her, after applying the Indeterminate
confirmation. The LBP then denied receiving any ₱11,300.00 deposit on Sep 19, 1996 from
Sentence Law, to suffer imprisonment from 7 years, 4 months, and 1 day of prision
petitioner for the account of the DOTC.9 Thus, the COA demanded that she pay the said
mayor medium period, as minimum, to 11 years, 6 months and 21 days of prision mayor as
amount. Petitioner, however, refused. Consequently, the COA filed a complaint for
maximum period to reclusion temporalmaximum period, as maximum, and to pay a fine of
malversation of public funds against petitioner with the Office of the Ombudsman for Luzon
₱11,300.00.
which, after due investigation, recommended her indictment for the loss of
₱11,300.00.10 Accordingly, petitioner was charged before the RTC of Baguio City in an
Information, the accusatory portion of which reads: Accused Ophelia Hernan is further sentenced to suffer the penalty of perpetual special
disqualification.
That on or about Sep 16, 1996, or sometime prior or subsequent thereto, in the City of
Baguio, PH, and within the jurisdiction of this Honourable Court, the above-named accused, Likewise, accused Ophelia Hernan is hereby ordered to pay back to the govt the amount of
a public officer, being then the Disbursing Officer of the Department of Transportation and ₱11,300.00 plus legal interest thereon at the rate of 12% per annum to be computed from
Communications, Baguio City, and as such an accountable officer, entrusted with and the date of the filing of the Information up to the time the same is actually paid.
responsible for the amount of ₱1 1,300.00 which accused received and collected for the
DOTC, and intended for deposit under the account of DOTC with the Land Bank of the PH-
Baguio City, by reason of her position, while in the performance of her official functions, Costs against the accused.
taking advantage of her position, did then and there, wilfully, feloniously, and unlawfully
misappropriate or consent, or through abandonment or negligence, permit other persons to SO ORDERED.16
take such amount of ₱11,300.00 to the damage and prejudice of the govt.
Erroneously, petitioner appealed to the CA , which affirmed her conviction but modified the
CONTRARY TO LAW.11 penalty imposed. Upon motion, however, the CA set aside its decision on the finding that it
has no appellate jurisdiction over the case. Instead, it is the Sandiganbayan which has
Upon arraignment on July 31, 1998, petitioner pleaded not guilty to the offense charged. exclusive appellate jurisdiction over petitioner occupying a position lower than Salary Grade
27.17 Petitioner's new counsel, Atty. Leticia Gutierrez Hayes-Allen, then appealed the case to
Hence, trial on the merits ensued.
the Sandiganbayan. In a Decision dated Nov 13, 2009, the Sandiganbayan affirmed the
RTC's judgment of conviction but modified the penalty imposed, the dispositive opinion of
To establish its case, the prosecution presented the testimonies of two (2) COA auditors, which reads:
namely, Maria Lopez and Sherelyn Narag as well as three (3) LBP employees, namely,
Rebecca Sanchez, Catalina Ngaosi, and Nadelline Orallo. 12 In response, the defense
presented the lone testimony of petitioner, which can be summarized as follows: WHEREFORE, in view of all the foregoing, the appealed decision is hereby AFFIRMED, with
the modifications that the indeterminate penalty to be imposed on the accused should be
from 6 years and 1 day of prision mayor as minimum, to 11 years, 6 months, and 21 days
of prision mayor as maximum, together with the accessory penalties under Article 42 of the

12
 CRIMINAL LAW I
DAY 3

RPC, and that interest of only 6% shall be imposed on the amount of ₱11,300.00 to be III.
restored by the accused. THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
PRONOUNCING THAT THE MOTION TO REOPEN AND THE PETITION FOR
SO ORDERED.18
RECONSIDERATION FILED BY PETITIONER ARE CONSIDERED AS THE SECOND AND
THIRD MOTIONS TO THE DENIAL OF THE DECISION.
Petitioner filed a Motion for Reconsideration dated Dec 21, 2009 alleging that during the trial
before the RTC, her counsel was unable to elicit many facts which would show her innocence.
Petitioner posits that her counsel, Atty. Hayes-Allen, never received the Aug 31, 2010
Said counsel principally failed to present certain witnesses and documents that would
Resolution of the Sandiganbayan denying her Motion for Reconsideration. This is because
supposedly acquit her from the crime charged. The Sandiganbayan, however, denied the motion
notice thereof was erroneously sent to said counsel's previous office at Poblacion, La
in a Resolution dated Aug 31, 2010 on the ground that evidence not formally offered before the
Trinidad, Benguet, despite the fact that it was specifically indicated in the Motion for
court below cannot be considered on appeal.
Reconsideration that the new office is at the Public Attorney's Office of Tayug, Pangasinan,
following her counsel's appointment as public attorney. Thus, since her counsel was not
On June 26, 2013, the Resolution denying petitioner's Motion for Reconsideration became properly notified of the subject resolution, the entry of judgment is premature. 26 In support of
final and executory and was recorded in the Book of Entries of Judgments. 20 On July 26, her assertion, she cites Our ruling in People v. Chavez,27 wherein We held that an entry of
2013, petitioner's new counsel, Atty. Meshack Macwes, filed an Urgent Motion to Reopen judgment without receipt of the resolution is premature.
the Case with Leave of Court and with Prayer to Stay the Execution.21 In a Resolution dated
Dec 4, 2013, however, the Sandiganbayan denied the motion and directed the execution of
Petitioner also claims that during trial, she could not obtain the necessary evidence for her
the judgment of conviction. It noted the absence of the following requisites for the reopening
defense due to the fact that the odds were against her. Because of this, she asks the Court
of a case: (1) the reopening must be before finality of a judgment of conviction; (2) the order
to relax the strict application of the rules and consider remanding the case to the lower court
is issued by the judge on his own initiative or upon motion; (3) the order is issued only after a
for further reception of evidence.28 In particular, petitioner seeks the reception of an affidavit
hearing is conducted; (4) the order intends to prevent a miscarriage of justice; and (5) the
of a certain John L. Ziganay, an accountant at the DOST previously worked at the DOTC
presentation of additional and/or further evidence should be terminated within thirty (30)
and COA, as well as two (2) deposit slips. According to petitioner, these pieces of evidence
days from the issuance of the order.23
would show that the ₱11,300.00 deposited at the Lagawe branch of the LBP was actually
the deposit made by petitioner and not by a certain Lanie Cabacungan, as the prosecution
Unfazed, petitioner filed on Jan 9, 2014 a Petition for Reconsideration with Prayer for Recall of suggests. This is because the ₱11,300.00 deposit made by Cabacungan consists of two (2)
Entry of Judgment in lieu of the Prayer for Stay of Execution of Judgment praying for a different amounts, which, if proper accounting procedure is followed, shall be recorded in the
reconsideration of the Sandiganbayan' s recent Resolution, that the case be reopened for bank statement as two (2) separate amounts and not their total sum of ₱11,300.00.29 Thus,
further reception of evidence, and the recall of the Entry of Judgment dated June 26, the Sandiganbayan's denial of petitioner's motion to reopen the case is capricious, despotic,
2013.24 In a Resolution dated February 2, 2015, the Sandiganbayan denied the petition for and whimsical since the admission of her additional evidence will prevent a miscarriage.
lack of merit. According to the said court, the motion is clearly a third motion for
reconsideration, which is a prohibited pleading under the Rules of Court. Also, the grounds
Finally, petitioner denies the Sandiganbayan's ruling that her motion to reopen and petition
raised therein were merely a rehash of those raised in the two previous motions. The claims
for reconsideration are considered as a second and third motion for reconsideration, and are
that the accused could not contact her counsel on whom she merely relied on for appropriate
thus, prohibited pleadings. This is because the additional evidence she seeks to introduce
remedies to be filed on her behalf, and that she has additional evidence to present, were
were not available during the trial of her case.
already thoroughly discussed in the Aug 31, 2010 and Dec 4, 2013 Resolutions. Moreover,
the cases relied upon by petitioner are not on point.25
The petition is devoid of merit.
On May 14, 2015, petitioner filed the instant petition invoking the following arguments:
At the outset, the Court notes that as pointed out by respondent Office of the Special
Prosecutor, petitioner's resort to a petition for certiorari under Rule 65 of the Rules of Court
I.
is an improper remedy. In determining the appropriate remedy or remedies available, a party
THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF
aggrieved by a cou1i order, resolution or decision must first correctly identify the nature of
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING
the order, resolution or decision he intends to assail.30 It bears stressing that the
THAT THE MOTION TO REOPEN WAS FILED OUT OF TIME CONSIDERING TI-IE
extraordinary remedy of certiorari can be availed of only if there is no appeal or any other
EXTRAORDINARY AND EXCEPTIONAL CIRCUMSTANCES SURROUNDING THE CASE.
plain, speedy, and adequate remedy in the ordinary course of law.31 If the Order or
II.
Resolution sought to be assailed is in the nature of a final order, the remedy of the aggrieved
THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF
party would be to file a petition for review on certiorari under Rule 45 of the Rules of Court.
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT
Otherwise, the appropriate remedy would be to file a petition for certiorari under Rule
THE EVIDENCE INTENDED TO BE PRESENTED BY PETITIONER SHOULD HER
65.32 Petitioner, in the instant case, seeks to assail the Sandiganbayan's Resolutions dated
MOTTON FOR REOPENING BE GRANTED, WAS PASSED UPON BY THE TRIAL
Dec 4, 2013 and February 2, 2015 wherein said court denied her motion to reopen the
COURT.

13
 CRIMINAL LAW I
DAY 3

malversation case against her. Said resolutions are clearly final orders that dispose the Prayer to Stay the Execution, which was denied through the Sandiganbayan's Resolution
proceedings completely. The instant petition for certiorari under Rule 65 is, therefore, dated Dec 4, 2013.41 Undeterred, petitioner filed her Petition for Reconsideration with Prayer
improper. for Recall of Entry of Judgment in lieu of the Prayer for the Stay of Execution of
Judgement on Jan 9, 2014 which was likewise denied in the Sandiganbayan's February 2,
2015 Resolution.
Even if We assume the propriety of petitioner's chosen action, the Court still cannot grant
the reliefs she prays for, specifically: (1) the reversal of the Sandiganbayan's Dec 4, 2013
and February 2, 2015 Resolutions denying her motion to reopen and petition for It seems, therefore, that petitioner waited almost an entire three (3) year period from the
reconsideration; (2) the reopening of the case for further reception of evidence; and (3) the denial of her Motion for Reconsideration to act upon the malversation case against her
recall of the Entry of Judgment dated June 26, 2013.33 through the filing of her urgent motion to reopen. In fact, her filing of said motion may very
well be prompted only by her realization that the case has finally concluded by reason of the
entry of judgment. Stated otherwise, the Court is under the impression that had she not
First of all, there is no merit in petitioner's claim that since her counsel was not properly
heard of the recording of the Aug 31, 2010 Resolution in the Book of Entries of Judgments
notified of the Aug 31, 2010 Resolution as notice thereof was erroneously sent to her old
on June 26, 2013, petitioner would not even have inquired about the status of her case. As
office address, the entry of judgment is premature. As the Court sees it, petitioner has no
respondent puts it, the urgent motion to reopen appears to have been filed as a substitute
one but herself to blame. Time and again, the Court has held that in the absence of a proper
for the lost remedy of an appeal via a petition for review on certioraribefore the Court.42 On
and adequate notice to the court of a change of address, the service of the order or
this inexcusable negligence alone, the Court finds sufficient basis to deny the instant
resolution of a court upon the parties must be made at the last address of their counsel on
petition.
record.34 It is the duty of the party and his counsel to device a system for the receipt of mail
intended for them, just as it is the duty of the counsel to inform the court officially of a
change in his address.35 If counsel moves to another address without informing the court of Second of all, petitioner's claim that the Sandiganbayan's denial of her motion to reopen the
that change, such omission or neglect is inexcusable and will not stay the finality of the case is capricious, despotic, and whimsical since the admission of her additional evidence
decision. The court cannot be expected to take judicial notice of the new address of a lawyer will prevent a miscarriage has no legal nor factual leg to stand on. Sec. 24, Rule 119 and
who has moved or to ascertain on its own whether or not the counsel of record has been existing jurisprudence provide for the following requirements for the reopening a case: (l) the
changed and who the new counsel could possibly be or where he probably resides or holds reopening must be before the finality of a judgment of conviction; (2) the order is issued by
office.36 the judge on his own initiative or upon motion; (3) the order is issued only after a hearing is
conducted; (4) the order intends to prevent a miscarriage of justice; and (5) the presentation
of additional and/or further evidence should be terminated within thirty days from the
Here, it is undisputed that petitioner's counsel failed to inform the court of the change in her
issuance of the order.43
office address from Poblacion, La Trinidad, Benguet, to the Public Attorney's Office in
Tayug, Pangasinan. The fact that said new address was indicated in petitioner's Motion for
Reconsideration does not suffice as "proper and adequate notice" to the court. As previously But as the Sandiganbayan ruled, the absence of the first requisite that the reopening must
stated, courts cannot be expected to take notice of every single time the counsel of a party be before the finality of a judgment of conviction already cripples the motion.1âwphi1 The
changes address. Besides, it must be noted that petitioner even expressly admitted having records of the case clearly reveal that the Aug 3l, 2010 Resolution of the Sandiganbayan
received the subject resolution "sometime in Sep or Oct 2010."37 Easily, she could have denying petitioner's Motion for Reconsideration had already become final and executory
informed her counsel of the same. As respondent posits, it is not as if petitioner had no and, in fact, was already recorded in the Entry Book of Judgments on June 26, 2013.
knowledge of the whereabouts of her counsel considering that at the time of the filing of her Moreover, petitioner's supposed predicament about her former counsel failing to present
Motion for Reconsideration, said counsel was already with the PA0. 38 Moreover, the Court witnesses and documents should have been advanced before the trial court. 44 It is the trial
cannot permit petitioner's reliance on the Chavez case because there, petitioner did not court, and neither the Sandiganbayan nor the Court, which receives evidence and rules over
receive the resolution of the CA through no fault or negligence on his paii.39 Here, however, exhibits formally offered.45 Thus, it was, indeed, too late in the day to advance additional
petitioner's non-receipt of the subject resolution was mainly attributable not only to her allegations for petitioner had all the opportunity to do so in the lower court. An appellate
counsel's negligence but hers, as well. Thus, the Court deems it necessary to remind court will generally not disturb the trial court's assessment of factual matters except only
litigants, who are represented by counsel, that they should not expect that all they need to when it clearly overlooked certain facts or where the evidence fails to substantiate the lower
do is sit back, relax and await the outcome of their case. They should give the necessary court's findings or when the disputed decision is based on a misapprehension of facts. 46
assistance to their counsel for what is at stake is their interest in the case. It is, therefore,
their responsibility to check the status of their case from time to time.40
Ultimately, it bears stressing that the Court does not find that the Sandiganbayan acted in a
capricious, despotic, or whimsical manner when it denied petitioner's motion to reopen
To recall, petitioner, on Dec 21, 2009, filed her Motion for Reconsideration seeking a especially in view of the fact that the rulings it seeks to refute are legally sound and
reversal of the Sandiganbayan's Nov 13, 2009 Decision which affirmed the RTC's ruling appropriately based on the evidences presented by the parties. On this score, the elements
convicting her of the crime of malversation. In a Resolution dated Aug 31, 2010, the of malversation of public funds under Article 217 of the RPC are: (1) that the offender is a
Sandiganbayan denied petitioner's Motion for Reconsideration. Said resolution became final public officer; (2) that he had the custody or control of funds or property by reason of the
in the absence of any pleading filed thereafter, and hence, was recorded in the Book of duties of his office; (3) that those funds or property were public funds or prope1iy for which
Entries of Judgments on June 26, 2013. Subsequently, on July 12, 2013, petitioner, through he was accountable; and (4) that he appropriated, took, misappropriated or consented or,
her new counsel, filed an Urgent Motion to Reopen the Case with Leave of Court and with through abandonment or negligence, permitted another person to take them. This article

14
 CRIMINAL LAW I
DAY 3

establishes a presumption that when a public officer fails to have duly forthcoming any public fact that the pleadings filed by petitioner are entitled Urgent Motion to Reopen the Case with
funds with which he is chargeable, upon demand by any duly authorized officer, it shall Leave of Court and with Prayer to Stay Execution and Petition for Reconsideration with
be prima facieevidence that he has put such missing funds to personal uses. 47 Prayer for Recall of Entry of Judgment in lieu of the Prayer for Stay of Execution of
Judgment does not exempt them from the application of the rules on prohibited pleadings.
As duly found by the trial court, and affinned by the Sandiganbayan, petitioner's defense that
she, together with her supervisor Cecilia Paraiso, went to the LBP and handed the subject Let it be remembered that the doctrine of finality of judgment is grounded on the
₱11,300.00 deposit to the teller Ngaosi and, thereafter, had no idea as to where the money fundamental principle of public policy and sound practice that, at the risk of occasional error,
went failed to overcome the presumption of law. For one, Paraiso was never presented to the judgment of courts and the award of quasi-judicial agencies must become final on some
corroborate her version. For another, when questioned about the subject deposit, not only did definite date fixed by law. The only exceptions to the general rule are the correction of
petitioner fail to make the same readily available, she also could not satisfactorily explain its clerical errors, the so-called nunc pro tune entries which cause no prejudice to any party,
whereabouts. Indeed, in the crime of malversation, all that is necessary for conviction is void judgments, and whenever circumstances transpire after the finality of the decision
sufficient proof that the accountable officer had received public funds, that she did not have which render its execution unjust and inequitable.52 None of the exceptions is present in this
them in her possession when demand therefor was made, and that she could not case.
satisfactorily explain her failure to do so. Thus, even if it is assumed that it was somebody
else who misappropriated the said amount, petitioner may still be held liable for malversation.
Indeed, every litigation must come to an end once a judgment becomes final, executory and
The Comi quotes, with approval, the trial court's ruling, viz.:
unappealable. Just as a losing party has the right to file an appeal within the prescribed
period, the winning party also has the correlative right to enjoy the finality of the resolution of
Even if the claim of Hernan, i.e., that she actually left the amount of ₱11,300.00 and his case by the execution and satisfaction of the judgment, which is the "life of the law." To
the corresponding deposit slip with the Bank Teller Ngaosi and she came back to frustrate it by dilatory schemes on the part of the losing party is to frustrate all the efforts,
retrieve the deposit slip later, is to be believed and then it came out that the said time and expenditure of the courts. It is in the interest of justice that this Court should
₱11,300.00 was not credited to the account of DOTC with the Land Bank and was in write finis to this litigation.53
fact missing, still accused Hernan should be convicted of malversation because in
this latter situation she permits through her inexcusable negligence another person
The foregoing notwithstanding, the Court finds that it is still necessary to reopen the instant
to take the money. And this is still malversation under Article 217.49
case and recall the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, not for
further reception of evidence, however, as petitioner prays for, but in order to modify the
Said ruling was, in fact, duly reiterated by the Sandiganbayan in its Decision, thus: penalty imposed by said court. The general rule is that a judgment that has acquired finality
becomes immutable and unalterable, and may no longer be modified in any respect even if
the modification is meant to correct erroneous conclusions of fact or law and whether it will
Shifting our gaze to the possibility that it was the bank teller Catalina Ngaosi who
be made by the court that rendered it or by the highest court of the land.54 When, however,
misappropriated the amount and should therefore be held liable, as the accused would want
circumstances transpire after the finality of the decision rendering its execution unjust and
to poltray, the Court doubts the tenability of that position. As consistently ruled by
inequitable, the Court may sit en bane and give due regard to such exceptional
jurisprudence, a public officer may be held liable for malversation even if he does not use
circumstance warranting the relaxation of the doctrine of immutability. The same is in line
public property or funds under his custody for his personal benefit, but consents to the taking
with Sec 3(c),55 Rule II of the Internal Rules of the Supreme Court, which provides that
thereof by another person, or, through abandonment or negligence, permitted such
cases raising novel questions of law are acted upon by the Court en bane. To the Court, the
taking. The accused, by her negligence, simply created the opportunity for the
recent passage of RA No. 10951 entitled An Act Adjusting the Amount or the Value of
misappropriation. Even her justification that her deposits which were not machine-
Property and Damage on which a Penalty is Based and the Fines Imposed Under the RPC
validated were nonetheless acknowledged by the bank cannot fortify her defense. On
Amending for the Purpose Act No. 3815 Otherwise Known as the "RPC" as Amended which
the contrary, it all the more emphasizes her propensity for negligence each time that
accordingly reduced the penalty applicable to the crime charged herein is an example of
she accepted deposit slips which were not machinevalidated, her only proof of receipt
such exceptional circumstance. Sec 40 of said Act provides:
of her deposits. 50

SEC. 40. Art 217 of the same Act, as amended by RA 1060, is hereby further amended to
In view of the foregoing, the Court agrees with the Sandiganbayan's finding that petitioner's
read as follows:
motion to reopen and petition for reconsideration are practically second and third motions for
reconsideration from its Decision dated Nov 13, 2009. Under the rules, the motions are
already prohibited pleadings under Sec. 5, Rule 37 of the Rules of Court due to the fact that ART. 217. Malversation of public funds or property; Presumption of malversation. - Any
the grounds raised in the petition for reconsideration are merely a rehash of those raised in public officer who, by reason of the duties of his office, is accountable for public funds or
the two (2) previous motions filed before it. These grounds were already thoroughly property, shall appropriate the same, or shall take or misappropriate or shall consent,
discussed by the Sandiganbayan in its subject resolutions. Hence, as duly noted by the through abandonment or negligence, shall permit any other person to take such public
Sandiganbayan, in the law of pleading, courts are called upon to pierce the form and go into funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
the substance, not to be misled by a false or wrong name given to a pleading because the malversation of such funds or property, shall suffer:
title thereof is not controlling and the court should be guided by its averments. 51 Thus, the

15
 CRIMINAL LAW I
DAY 3

1. The penalty of pnswn correccional in its medium and maximum periods, if the commission. For as long as it is favorable to the accused, said recent legislation shall find
amount involved in the misappropriation or malversation docs not exceed ₱40,000.00. application regardless of whether its effectivity comes after the time when the judgment of
conviction is rendered and even if service of sentence has already begun. The accused, in
these applicable instances, shall be entitled to the benefits of the new law warranting him to
xxxx
serve a lesser sentence, or to his release, if he has already begun serving his previous
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
sentence, and said service already accomplishes the term of the modified sentence. In the
disqualification and a fine equal to the amount of the funds malversed or equal to the total
latter case, moreover, the Court, in the interest of justice and expediency, further directs the
value of the property embezzled.
appropriate filing of an action before the Court that seeks the reopening of the case rather
than an original petition filed for a similar purpose.
Pursuant to the aforequoted provision, therefore, We have here a novel situation wherein the
judgment convicting the accused, petitioner herein, has already become final and executory
Indeed, when exceptional circumstances exist, such as the passage of the instant
and yet the penalty imposed thereon has been reduced by virtue of the passage of said law.
amendatory law imposing penalties more lenient and favorable to the accused, the Court
Because of this, not only must petitioner's sentence be modified respecting the settled rule
shall not hesitate to direct the reopening of a final and immutable judgment, the objective of
on the retroactive effectivity of laws, the sentencing being favorable to the accused,56 she
which is to correct not so much the findings of guilt but the applicable penalties to be
may even apply for probation,57 as long as she does not possess any ground for
imposed.
disqualification,58 in view of recent legislation on probation, or RA 10707 entitled An Act
Amending Presidential Decree No. 968, otherwise known as the "Probation Law of 1976,"
As Amended. allowing an accused to apply for probation in the event that she is sentenced Henceforth: (1) the Directors of the National Penitentiary and Correctional Institution for Women
to serve a maximum term of imprisonment of not more than six (6) years when a judgment of are hereby ordered to determine if there are accused serving final sentences similarly situated
conviction imposing a non-probationable penalty is appealed or reviewed, and such as the accused in this particular case and if there are, to coordinate and communicate with the
judgment is modified through the imposition of a probationable penalty.59 Public Attorney's Office and the latter, to represent and file the necessary pleading before this
Court in behalf of these convicted accused in light of this Court's pronouncement; (2) For those
cases where the accused are undergoing preventive imprisonment, either the cases against
Thus, in order to effectively avoid any injustice that petitioner may suffer as well as a
them are non-bailable or cannot put up the bail in view of the penalties imposable under the old
possible multiplicity of suits arising therefrom, the Court deems it proper to reopen the
law, their respective counsels are hereby ordered to file the necessary pleading before the
instant case and recall the Entry of Judgment dated June 26, 2013 of the Sandiganbayan,
proper courts, whether undergoing trial in the RTC or undergoing appeal in the appellate courts
which imposed the penalty of six (6) years and one (1) day of prision mayor, as minimum, to
and apply for bail, for their provisional liberty; (3) For those cases where the accused are
eleven (11) years, six (6) months, and twenty-one (21) days of prision mayor, as maximum.
undergoing preventive imprisonment pending trial or appeal, their respective counsels are
Instead, since the amount involved herein is ₱11,300.00, which does not exceed
hereby ordered to file the necessary pleading if the accused have already served the minimum
₱40,000.00, the new penalty that should be imposed is prision correccional in its medium
sentence of the crime charged against them based on the penalties imposable under the new
and maximum periods, which has a prison term of two (2) years, four (4) months, and one
law, RA 10951, for their immediate release in accordance with A.M. No. 12-11-2-SC or
(1) day, to six (6) years. The Court, however, takes note of the presence of the mitigating
the Guidelines For Decongesting Holding Jails By Enforcing The Rights Of Accused Persons
circumstance of voluntary surrender appreciated by the Sandiganbayan in favor of
To Bail And To Speedy Trial; 62 and (4) Lastly, all courts, including appellate courts, are hereby
petitioner.60 Hence, taking into consideration the absence of any aggravating circumstance
ordered to give priority to those cases covered by RA 10951 to avoid any prolonged
and the presence of one (1) mitigating circumstance, the range of the penalty that must be
imprisonment.
imposed as the maximum term should be prision correccional medium to prision
correccional maximum in its minimum period, or from two (2) years, four (4) months, and
one (1) day, to three (3) years, six (6) months, and twenty (20) days, in accordance with WHEREFORE, premises considered, the instant petition is DENIED. The Resolution dated
Article 6461 of the RPC. Applying the Indeterminate Sentence Law, the range of the February 2, 2015 and Decision dated Nov 13, 2009 of the Sandiganbayan 2nd Division
minimum term that should be imposed upon petitioners is anywhere within the period are AFFIRMED with MODIFICATION.Petitioner is hereby sentenced to suffer the
of arresto mayor, maximum to prision correccional minimum with a range of four (4) months indeterminate penalty of six (6) months of arresto mayor, as minimum term, to three (3)
and one (1) day to two (2) years and four (4) months. Accordingly, petitioner is sentenced to years, six (6) months, and twenty (20) days prision correccional, as maximum term.
suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3)
years, six (6) months, and twenty (20) days prision correccional, as maximum.
Let copies of this Decision be furnished to the Office of the Court Administrator (OCA) for
dissemination to the First and Second Level courts, and also to the Presiding Justices of the
On a final note, judges, public prosecutors, public attorneys, private counsels, and such appellate courts, the DOJ, OSG, Public Attorney's Office, Prosecutor General's Office, the
other officers of the law are hereby advised to similarly apply the provisions of RA No. 10951 Directors of the National Penitentiary and Correctional Institution for Women, and the IBP for
whenever it is, by reason of justice and equity, called for by the facts of each case. Hence, their information, guidance, and appropriate action.
said recent legislation shall find application in cases where the imposable penalties of the
affected crimes such as theft, qualified theft, estafa, robbery with force upon things,
Likewise, let the Office of the President, the Senate of the PH, and the House of
malicious mischief, malversation, and such other crimes, the penalty of which is dependent
Representatives, be furnished copies of this Decision for their information.
upon the value of the object in consideration thereof, have been reduced, as in the case at
hand, taking into consideration the presence of existing circumstances attending its

16
 CRIMINAL LAW I
DAY 3

SO ORDERED. FOR ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered in favor of
Fortunato Aisporna and against Avelino de la Cruz, in the tenor and disposition herein below
provided to wit:
Repeals:
FIRST DIVISION
G.R. No. L-47533 Oct 27, 1981 1. Declaring that defendant Avelino de la Cruz has not personally and by himself undertaken
FORTUNATO AISPORNA, Petitioner, vs. COURT OF APPEALS, AVELINO DE LA CRUZ the work and cultivate the landholding in question with an area of 23,756 sqm, situated at
and BENIGNO DE LA CRUZ, Respondents. Sto. Cristo, Gapan, Nueva Ecija, since he has disposed plaintiff Fortunato Aisporna
therefrom on May 12, 1969;
GUERRERO, J.: 2. Ordering defendant Avelino de la Cruz to reinstate plaintiff immediately to the aforesaid
landholding,
In CAR Case No. 420-Gpn-NE'70, entitled "Fortunato Aisporna vs. Avelino De la Cruz", an action 3. Denying plaintiff's claim for payment of actual or compensatory damages, as wen as
for reinstatement with damages, instituted before the Court of Agrarian Relations at Gapan, exemplary or moral damages for insufficiency of evidence;
Nueva Ecija, where the complaint was later amended to include respondent Benigno de la Cruz,
herein petitioner Fortunato Aisporna obtained judgment for reinstatement to the possession of a 4. Ordering said defendant Avelino de la Cruz to pay plaintiff the amount of P2,000 in the
farm land as leasehold tenant by virtue of Sec. 36-1 of R.A. 3844, otherwise known as the form of litigation expenses; and
Agricultural Land Reform Code of 1963. On appeal by respondents, the aforesaid judgment was
set aside by the CA 1 fundamentally on the ground that the remedy for the reinstatement of an 5. Dismissing the complaint with respect to defendant Benigno de la Cruz.
ejected tenant secured under the above provision had been abolished or repealed by R.A. 6389 Defendant Avelino de la Cruz appealed to the CA. In reversing the decision of the agrarian
which amended R.A. 3844. Hence, this petition for review on certiorari of the latter judgment. court, the CA relied on the amendment to the first paragraph of section 36 introduced by RA
6389 during the pendency of the action for reinstatement, the amendment abolishing personal
The factual antecedents of this case are not disputed. The property involved is a farm land cultivation as ground for ejecting an agricultural lessee. The appealed decision held that with
measuring approximately 23,756 square meters situated in Sto. Cristo, Gapan, Nueva Ecija, the abolition of personal cultivation, with it was eliminated the corollary proviso on reinstatement
planted to palay. Private respondent Avelino de la Cruz acquired the land sometime in 1966. In a of the ejected tenant. It further ruled that since the amending law is silent as regards those
verbal contract of leasehold tenancy, he transferred possession of the land to petitioner Fortunato cases for ejectment and/or reinstatement authorized and filed in court under paragraph I of sec
Aisporna as tenant, 36, RA 3844, which are pending at the time of the amendment, the cause of action for
reinstatement and the right to bring an action and pursue the remedy, albeit already started, are
abated pursuant to the general rule that the repeal of a law defeats all actions and proceedings
Shortly thereafter, in 1967, private respondent Avelino de la Cruz filed a complaint (CAR Case under the repealed statute at the time of its repeal, including those which are pending appeal.
No. 4318) with the Court of Agrarian Relations for the ejectment of petitioner tenant on the Accordingly, the CA ordered the dismissal of the appealed case.
ground that he (de la Cruz) will personally cultivate the farm. The agrarian court on July 7, 1967
rendered a decision which authorized the owner Avelino de la Cruz to dispossess his tenant. The
decision was affirmed by the CA on Oct 1, 1968, and after said judgment became final and From the above reversal, petitioner comes before Us and submits the following issues:
executory, Fortunato Aisporna was ejected from the landholding and the owner, Avelino de la
Cruz, assumed actual physical possession of the farmland on May 13, 1969. I
WHETHER OR NOT SECTION 36 OF RA 3844 IS APPLICABLE TO THE CASE AT BAR.
Subsequently, on April 11, 1970, Fortunato Aisporna filed CAR Case No. 420-Gpn-NE'70 for
reinstatement with damages on the ground that the owner had failed to personally cultivate II
the landholding. He claimed that after his ejectment, the owner instituted co-respondent WHETHER OR NOT THE REPEAL OF SECTION 36 OF RA 3844 BY RA 6389,
Benigno de la Cruz as tenant to work and cultivate the farm during the two successive crop PLAINTIFF- APPELLEE LOST HIS RIGHT OF ACTION FOR REINSTATEMENT.
years from 1969 to 1971, and that respondent owner allegedly had not performed any phase
of farmwork but visited the landholding only during harvesting or threshing seasons. On the III
other hand, owner Avelino de la Cruz answered and asserted that he personally cultivated WHETHER OR NOT THE TENANCY RIGHT OF PLAINTIFF-APPELLEE OVER THE
the farm, sometimes with the use of farm machinery, including the preparation of seedbed, LANDHOLDING IN QUESTION IS ANCHORED ON SEC. 36 OF RA 3844.
broadcasting the seeds, plowing, harrowing and transplanting the seedlings. Trial was held
on the issue of personal cultivation and upon the conflicting assertions, appearing in the IV
testimonial evidence of the parties, the agrarian court found for the tenant Aisporna and WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS
rendered the following judgment on Aug 12, 1976, thus: REVERSING THE DECISION OF THE TRIAL COURT WOULD IN EFFECT NULLIFY
SECTION 7 OF RA 6389 ELIMINATING TOTALLY PERSONAL CULTIVATION AS A
GROUND FOR DISPOSSESSION OF AN AGRICULTURAL TENANT.

17
 CRIMINAL LAW I
DAY 3

WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS Sec. 36. Possession of Landholding; Exceptions. - Notwithstanding any agreement as to the
CONTRAVENES THE SPIRIT AND INTENT OF PRESIDENTIAL DECREE NO. 27 AND period or future surrender of the land, an agricultural lessee shall continue in the enjoyment
RUNS COUNTER TO THE POLICY OF AGRARIAN REFORM AND THE EMANCIPATION and possession of his landholding except when his dispossession has been authorized by
OF TENANT-FARMERS. the Court in a judgment that is final and executory if after due hearing it is shown that:

In amplification of the issues, petitioner maintains the view of the trial court that to sustain (1) The agricultural lessor-owner or a member of his immediate family will personally
the right of the lessor-owner to eject his tenant on ground of personal cultivation, the cultivate the landholding or will convert the landholding, ff suitably located, into residential,
former's desire or intention must be honest, sincere, and must have been motivated by good factory, hospital or school site or other useful non-agricultural purposes; Provided That the
faith, and bad faith is presumed if he does not cultivate the land himself within the period of 3 agricultural lessee shall be entitled to disturbance compensation equivalent to five years
years from the dispossession of the tenant, in which case, the latter shall have the right to be rental on his landholding in addition to his rights under Sec.s twenty-five and thirty- four,
reinstated and recover damages. In line with the dissenting opinion in the appealed decision, except when the land owned and leased by the agricultural lessor is not more than five
petitioner further argues that his right to remain as tenant is not based on paragraph 1 of hectares, in which case instead of disturbance compensation the lessee may be entitled to
Sec. 36 of RA No. 3844, nor that his right to reinstatement was created by the same, such advance notice of at least one agricultural year before ejectment proceedings are filed
that with the repeal of the said provision, the ejected tenant may no longer be reverted to the against him: Provided further, That should the landholder not cultivate the land himself for
possession of the leasehold from which he was ejected. Petitioner contends that what the three years or fail to substantially carry out such conversion within one year after the
law actually repealed was the right of the landlord to eject his tenant on ground of personal dispossession of the tenant, it shall be presumed that he acted in bad faith and the tenant
cultivation; and that where there is bad faith on the part of the landowner consisting of a shall have the right to demand possession of the land and recover damages for any loss
false representation on the said ground, Congress in repealing the paragraph did not intend incurred by him because of said dispossession;
to include the deprivation of the tenant's right to be reinstated. Finally, petitioner sees the
reversal as contrary to the spirit and intent of the current agrarian reform policy to
The amendatory act is RA No. 6389 entitled "An Act amending RA numbered Thirty Eight
emancipate the tenant farmers from the bondage of the soil.
Hundred and Forty Four as amended, otherwise known as the Agricultural Land Reform
Code, and for other purposes," approved Sep 10, 1971, otherwise known as the Code of
Respondent landowner, on the other hand, asserts that in view of the amendment of Sec. 36 Agrarian Reforms of the PH. Sec. 7 thereof provides as follows:
(1) of R.A. 3844 by R.A. 6389 and since Congress has not provided for any saving clause in
RA 6389 with respect to cases pending in the courts for the ejectment of agricultural lessees
Sec. 7. Sec. 36 (1) of the same Code is hereby amended to read as follows:
on the ground that the agricultural lessor or a member of his immediate family will personally
cultivate the landholding involved as authorized under Sec. 36, par (1) of R.A. 3844, the
repeal defeats all actions or proceedings pending under the repealed statute at the time of (1) The landholding is declared by the department head upon recommendation of the National
its repeal including those which are pending appeal, citing the case of Arambulo vs. Canicon Planning Commission to be suited for residential, commercial industrial or some other urban
CA-G.R. No. 46727-R, Jan 26, 1972, which was elevated to the Supreme Court in G.R. No. purposes: Provided, That the agricultural lessee shall be entitled to disturbance compensation
L-34816 but said petition was denied for lack of merit, in effect sustaining the CA' ruling that equivalent to five times the average of the gross harvests on his landholding during the last
R.A. 6389 abated pending appeals, according to private respondent's theory. And he five preceding calendar years.
concludes, thus: "Simply stated, the rights of the landowner and the tenant being reciprocal
under Sec. 36 (1) of RA 3844, it follows of necessity that the repeal of said law by RA 6389 A cursory reading of RA 6389, Sec. 7 quoted above clearly eliminated personal cultivation
erases not only the rights of the landholder but also the rights of the tenant for reinstatement. by the landowner as grounds for the ejectment of an agricultural tenant.
Consequently, we cannot now disturb the vested right of Avelino de la Cruz."
The assailed decision of the respondent CA, in dismissing the appeal, based its action in the
following rationale:
Finally, respondent claims that the action for reinstatement, assuming the remedy is still
available, was filed prematurely on May 5, 1970 or before the lapse of 3 years when no
When this case was still pending in the court below, the Land Reform Code, otherwise
presumption of bad faith on the part of the landowner has yet arises.
known as RA 6389, was passed by Congress which took effect on Sep 10, 1971. Its
repealing clause, Sec. 38, paragraph 2, RA 6389, expressly repealed and/or modified all
The central issue posed in these contentions is whether or not petitioner's action for laws or parts of any law inconsistent with the provisions thereof'. Among the provisions thus
reinstatement to enforce his right to demand possession of the leasehold pursuant to par. (1) repealed or amended was the aforequoted provision of See. 36, par 1, of RA 3844. Personal
of Sec. 36 of RA 3844 is deemed abated by the repeal or abolition during the pendency cultivation by the landowner as a ground for ejectment of the agricultural lessee was therein
thereof, of the aforesaid provision. eliminated and with it, was likewise eliminated the corollary proviso on reinstatement of the
ejected lessee.
Undoubtedly, the governing law then in force when petitioner filed his action for
Our main task now is to determine the effect of the repeal of the provision under which this
reinstatement to the land in question is paragraph (1) of Sec. 36 of R.A. 3844. This provision
case was instituted, not any more the issue of whether or not defendant-appellant personally
states:
cultivated the landholding to determine the plaintiff's right to a reinstatement. Let it be noted
that the repealing law RA 6389 is silent as regards those cases for ejectment and/or

18
 CRIMINAL LAW I
DAY 3

reinstatement authorized and filed in court under Sec. 36, paragraph 1 of RA 3844, and appeal. A suit the continuance of which is dependent upon the statute repealed stops where
which are pending at the time of the repeal thereof. the repeal finds it (South Carolina v. Caellard)

That being the case, we believe that the dismissal of the present case is in order. for this If upon the effectivity of RA 6389 on Sep 10, 1971, a plaintiff landowner who has a pending
Court, and any court for that matter, is already powerless to grant the remedy sought by the case for ejectment of his tenant, has lost his right to do so, as above cited, then We see no
plaintiff-appellee in view of the repeal of the law upon which his right was predicated. No reason why, under similar prevailing circumstances, We should reinstate the herein plaintiff-
valid judgment can be rendered in the pending case after the repeal of the act under which it appellee to the landholding from where he had been ejected pursuant to a final and
was brought. (Re McCardle 7 Wall. 506.) executory judgment of the same Agrarian Court in its CAR Case No. 4318.

That a cause of action for reinstatement accrued under the old law in favor of the plaintiff- We do not agree with respondent appellate court.
appellee, on the assumption that defendant- appellant really did not personally cultivate his
landholding, is not disputed. But the right to bring an action and pursue the remedy albeit
What RA 6389 abolished, eliminated or repealed is the right of the landowner to eject his
already started, is already precluded by the repeal of paragraph 1, Sec. 36, of RA 3844 from
tenant on the grounds that said landowner would personally cultivate the land. This
which the said right was deprived, the repealing law, not having provided any saving clause
amendatory Act did not abolish the right of the tenant to continue in the enjoyment and
with respect thereto.
possession of his landholding. In fact, such right of the tenant to remain in the enjoyment
and possession of the landholding was not created by paragraph (1) of Sec. 36, Rep. Act
The repealing clause is such an express enactment as necessarily divests all inchoate rights 3844 because the main proviso of Sec. 36 actually recognizes the tenant's right to continue
which have arisen under the statute which it destroys. These rights are but incident of the in the enjoyment and possession of his landholding in these terms: "Notwithstanding any
statute and fall with it, unless saved by express words in the repealing clause. (Dufus & agreement as to the period or future surrender of the land, an agricultural lessee shall
Howard Purnace Co.) In analogous cases, it had been held that: continue in the enjoyment and possession of his landholding ..." Such right to enjoy and
possess is not only a contractual right but also arises from a status of tenancy or relationship
The powers derived wholly from a statute are extinguished by its repealed and no duly recognized and protected by agrarian reform legislation.
proceedings can be pursued under the repealed statute though begun before the repeal,
unless such proceedings be authorized under a special clause in the repealing act.
Hence, Rep. Act 6389 in its Sec. 7 specifically amending Sec. 36 (1) of Rep. Act 3844
(Filanigan vs. Sierra Country; 25 Supreme Court Rep. 314.) A suit pending to enforce a right
cannot be considered to have repealed the tenant's right to enjoy and possess the
or remedy conferred solely by a statute, is abated by the unconditional repeal of the said
landholding because such right is preserved and maintained in the main proviso of Sec. 36
statute (Globe Pub. Co. vs. State Bank.)
which is not altered, amended or otherwise repealed. In other words, Sec. 36 of R.A. 3844
as amended by Sec. 7 of R.A. 6389 will read as follows:
This Court ordered the dismissal of an ejectment case, pending appeal herein when RA
6489 took effect, advocating the principle that "the repeal of a law defeats all actions and
Sec. 36. Possession of Landholding; Exceptions. - Notwithstanding and agreement as to the
proceedings under the repealed statute at the time of its repeal, including those which are
period or future surrender of the land, an agricultural lessee shall continue in the enjoyment
pending appeal." (Canicon vs. Arambulo, Jan 26, 1972.) Thus this Court, speaking through
and possession of his landholding except when his dispossession has been authorized by
Honorable Justice Jesus Y. Perez, said:
the Court in a judgment that is final and executory if after due hearing, it is shown that:

Since Congress has not provided for any saving clause in RA No. 6389 with respect to
(1) The landholding is declared by the department head upon recommendation of the
cases pending in Court for the ejectment of agricultural lessee on the ground that the
National Planning Commission to be suited for residential, commercial, industrial or some
agricultural lessor-owner or a member of his immediate family will personally cultivate the
other urban purposes: Provided, That the agricultural lessee shall be entitled to disturbance
landholding involved as authorized under Sec. 36, par. 1, Rep. Act 3844, then the instant
compensation equivalent to. five times the average of the gross harvests on his landholding
case should be dismissed for it is settled that the repeal defeats all acts and proceedings
during the last five preceding calendar years.
pending under the repealed statute at the time of its repeal including those which are
pending appeal,
That it was the intention of the legislature in amending paragraph (1), Sec. 36 of R.A. 3844
to deprive the landowner of the right to eject his tenant on the ground that the former would
As a general rule the repeal of a statute without reservation takes away all remedies given
personally cultivate the land and also to abate cases brought by the landowner to eject the
by the repealed statute and defeats all actions and proceedings pending under it at the time
tenant on the same ground which were still pending at the time of the passage of the
of its repeal. Gates vs. Osborne, 19 L. Ed. 768; Louisville & N.R. Co. v. Western Union
amendatory Act, is clear and evident from the deliberations and debate of Congress when
Telegraph Co., F. 4 (cert den.) The rule is especially applicable to the repeal of statutes
RA 6389 was being deliberated, as published in the Senate Journal, thus:
creating a cause of action (Callet v. Alioto; Western Union Tel. Co. vs. Lumpkin), providing a
remedy not known to the common law or conferring jurisdiction where it did not exist before,
and abates proceedings pending even after judgment but before the entry thereof or pending

19
 CRIMINAL LAW I
DAY 3

SENATOR DIOKNO: Now I am very much interested in one other aspect of the existing law 478, as quoted in The Code of Agrarian Reforms Annotated by Justice Guillermo S. Santos,
which has been the source of many problems, and that is, the termination of the tenancy 1973 Revised Edition, p. 157, to wit:
relationship because the landowner would want to cultivate the land himself.
Personal cultivation by the landowner of his land ... as a basis for dispossession is being
SENATOR LAUREL: We have eliminated that option on the part of the landowners, On p. 7, abused. This provision is being availed of by landowners in driving their lessees out of their
Your Honor you will notice that we have deleted from fine 3 to line 21. This is the basis of the landholding on the pretext of personal cultivation ... which often causes tension and
owner's alibi in refusing to sell to the tenants, that he will convert it into a subdivision, a explodes as an agrarian unrest.
hospital site or a school site. We are deleting that portion of the Code.
SENATOR LAUREL. Well, Your Honor, just for the record, the Committee would like to state
SENATOR DIOKNO: Now, what happens those cases which are now pending in court its reason for proposing the deletion of Sec. 36. First, based on statistics, 80 to 85 percent of
where this has been the excuse given In other words the landowner, under the existing law, the farm lands here in this country have also below 10 hectares. Second, the Idea of
has notified his tenants or lessess, 'You must vacate because I will personally cultivate the personal cultivation has been abused; it has become an alibi. It is the reason given always
land.' That is under the existing law which gives him that right. But if these cases are not yet by landowners to prevent the conversion from tenancy into leasehold. And third, when it
decided and then this bill is enacted into law, what would happen to those cases? comes to the weighing of who needs it more, we felt that the tenants on the land need it
"SENATOR LAUREL: It will not affect whatever contracts were entered into. more to survive than the owner who decides late in life to cultivate it himself or with his sons.
In other words, he who needs the help more should receive it. Or "those who (have) less in
life should have more in law - borrowing" from President Magsaysay That is the entire
SENATOR DIOKNO: There is no contract. No existing contract.
reason or philosophy for our proposal to eliminate Sec. 36. (Congressional Record, Senate,
Vol. 11, No. 48, April 13, 1971, p. 1844).
SENATOR LAUREL: Yes.
In the light of this clear intention of the law, We hold that the CA erred in dismissing the
SENATOR DIOKNO: It is just an old, old relationship between fathers and grandfathers, etc. appeal of the petitioner-tenant whereby he seeks reinstatement and the exercise of his right
of both parties, until they finally come down to the present parties. So the right of the to the enjoyment and possession of the landholding from which he had been previously
agricultural lessor-owner is based upon a legal provision. And this legal provision in force ousted by the landowner-respondent on the latter's false representation and bad faith, which
now authorizes him, with of course, certain provision that this matter can be brought to court right of enjoyment and possession has not been repealed or abolished by the Amendatory
and so forth, to eject these tenants. Now, can he continue to exercise that right or can we Act.
say that he can no longer do so because the right so to speak has not become final and it
has now disappeared?
The CA' holding that the repeal of a statute defeats all actions and proceedings pending
under the repealed statute at the time of its repeal, including those cases which are still
SENATOR LAUREL: In answer to Your Honor's question, the owner will lose the right to pending appeal is, of course, correct as the general rule in statutory construction. And for
eject after the enactment of this measure even on cases as those cited by your Honor, this reason, the dismissal of pending cases including those on appeal where the landowner
because in those particular cases, the owner has not really succeeded yet in ejecting the seeks the privilege or authority to oust his tenant on the ground of personal cultivation, is
tenants. justified and warranted because the repeal had eliminated personal cultivation as a ground
for eviction.
SENATOR DIOKNO: In other words, where the ejectment is already a final case, or "yari na"
then it is alright. But given the facts of the case at bar, where it is the tenant who, having been previously
ousted by the landowner by false representation and bad faith, now comes on appeal as
petitioner to enforce his right of security of tenure, We hold that the general rule stated
SENATOR LAUREL: Yes. above does not apply but the exceptions thereto which state that "a repealing statute must
not interfere with vested rights or impair the obligation of contracts that if any other
SENATOR DIOKNO: Well, I am glad Your Honor has the same view because that is the construction is possible, the act should not be construed so as to affect rights which have
same view that I would have advocated on p. 8, Your Honor refers. " (Senate Journal, Nos. vested under the old law, or as requiring the abatement of actions instituted for the
43 & 44, March 30 & 31, 1971, 2nd Regular Session-7th Congress) enforcement of such rights." (Statutory Construction by V.J. Francisco, p. 335; 23 Crawford,
Statutory Construction, Sec. 296, pp. 599-600).
Moreover, R.A. 6389 must be considered a remedial legislation enacted with the principal
aim and purpose of curtailing and suppressing the pernicious practice of many landowners The right of the petitioner-tenant to the enjoyment and possession of the landholding is a
who resort to the filing of cases of ejectment against their tenants based on personal right granted, conferred and vested by law, in fact by and through the various legislations
cultivation in retaliation to harrass tenants who were determined to enforce the rights that have been passed by the legislature to improve the lot of the tillers of the soil and by
granted them by law. Such justification is clearly expressed in the original Senate Bill No. progressive land reforms to emancipate them from bondage and poverty, even as the 1935
Philippine Constitution mandated that the State shall afford protection to labor, especially to

20
 CRIMINAL LAW I
DAY 3

working women and minors, and shall regulate the relations between landowner and tenant, Sec. 49. Ejectment of Tenant. - Notwithstanding any agreement or provision of law as to the
and between labor and capital in industry and agriculture, " (Art. XIV, Sec. 6, Constitution of period, in all cases where land devoted to any agricultural purpose is held under any system
the PH). Thus, We find the right of security of tenure of the tenant recognized under Act No. of tenancy, the tenant shall not be dispossessed of his holdings except for any of the causes
4054 otherwise known as "The Philippine Rice Share Tenancy Act" approved on February hereinafter enumerated and only after the same has been proved before, and the
27, 1933, under Sec. 19 thereof which provides as follows: dispossession is authorized by the court.

Sec. 19. Landlord cannot dismiss his tenant except for good causes.- The landlord shall not Sec. 50. Causes for the Dispossession of a Tenant. - Any of the following shall be a
dismiss his tenant without just and reasonable cause, otherwise the former shall be liable to sufficient cause for the dispossession of a tenant from this holdings:
the latter for losses and damages to the extent of his share in the product of the farm
entrusted to the dismissed tenant.
(a) The bona fide intention of the landholder to cultivate the land himself personally or
through the employment of farm machinery and implements: Provided, however, That
Commonwealth Act No. 461 entitled "An Act to regulate the relations between landowner should the landholder not cultivate the land himself or should fail to employ mechanical farm
and tenant and to provide for compulsory arbitration of any controversy arising between implements for a period of one year after the dispossession of the tenant, it shall be
them," approved June 9, 1939 further protected the security of tenure of the tenant under presumed that he acted in bad faith and the tenant shall have the right to demand
Sec. 1 thereof which states: possession of the land and damages for any loss incurred by him because of said
dispossession; Provided, further, That the landholder shall, at least one year but not more
than two Years prior to the date of his petition to dispossess the tenant under this sub-
Any agreement or provision of law to the contrary notwithstanding, in all cases where land is
section, file notice with the court and shall inform the tenant in writing in a language or
held under any system of tenancy the tenant shall not be dispossessed of the land cultivated
dialect known to the latter of his intention to cultivate the land himself, either personally or
by him except for any of the causes mentioned in section nineteen of Act Numbered Four
through the employment of mechanical implements, together with a certification of the
thousand fifty-four or for any just cause. and without the approval of a representative of the
Secretary of Agriculture and Natural Resources that the land is suited for mechanization:
Department of Justice duly authorized for the purpose. Should the landowner or the tenant
Provided, further, That the dispossessed tenant and the members of his immediate
feel aggrieved by the action taken by this official, or in the event of any dispute between
household shall be preferred in the employment of necessary laborers under the new set-up.
arising out of their relationship as landowner and tenant, either party may submit the matter
to the Court of Industrial Relations which is given jurisdiction to determine the controversy in
accordance with law. (b) ...

Under RA No. 1199, the Agricultural Tenancy Act of the PH, enacted Aug 30, 1954, the RA 2263, approved June 19, 1959, amended Sec. 49 of RA I 1 99, the latter to read as
tenancy relationship between a landowner and a tenant is clearly defined and under such follows:
relationship, the tenant acquires the right to continue working on and cultivating the land,
until and unless he is dispossessed of his holdings for any of the just causes enumerated in
Sec. 49. Ejectment of Tenant. - Notwithstanding any agreement or provision of law as to the
Sec. 50 or the relationship is terminated in accordance with Sec. 9. Specifically, Sec.s 6 and
period or future surrender of the land, in all cases where land devoted to any agricultural
7 of RA No. 1199 provide:
purpose is held under any system of tenancy, the tenant shall not be dispossessed of his
landholdings by the landholder except for any of the causes hereinafter enumerated and
Sec. 6. Tenancy Relationship; Its Definition.- Tenancy relationship is a juridical tie which only after the same has been proved before and the dispossession is authorized by the
arises between a landholder and tenant once they agree, expressly or impliedly to undertake court.
jointly the cultivation of land belonging to the former, either under the share tenancy or
leasehold tenancy system, as a result of which relationship the tenant acquires the right to
xxx xxx xxx
continue working on and cultivating the land, until and unless he is dispossessed of his
holdings for any of the just causes enumerated in Sec. fifty or the relationship is terminated
in accordance with Sec. nine. Sec. 50 of Rep. Act 1199 was likewise amended to include among the causes for the
dispossession of the tenant the bonafide intention of not only the landholder-owner but also
his relative within the first degree of consanguinity to cultivate the land himself personally or
(5) Sec. 7. Tenancy Relationship; How Established Security of
through the employment of farm machinery and implements.
Tenure. - Tenancy relationship may be established either verbally or in writing, expressly or
impliedly. Once such relationship is established, the tenant shall be entitled to security of
tenure as hereinafter provided. (emphasis supplied). The Agricultural Land Reform Code, which is RA No. 3844 approved Aug 8, 1963, contains
provisions establishing agricultural leasehold relation (Sec. 5) and conferring and protecting
the security of tenure of the agricultural lessee (Sec. 7).
It is interesting to note that under RA 1199, Part IV on Security of Tenure, the ejection of the
Thus -
tenant is provided under Sec. 49 and the causes for the dispossession of a tenant are
enumerated (which are similar to Sec. 36 of RA No. 3844) and these provisions read:

21
 CRIMINAL LAW I
DAY 3

Sec. 5. Establishment of Agricultural Leasehold Relation. - The agricultural leasehold tenant can only be terminated for causes provided by law. The principle is epitomized by the
relation shall be established by operation of law in accordance with Sec. four of this Code axiom in land tenure that - once a tenant, always a tenant. Attacks on the constitutionality of
and, in other cases, either orally or in writing, expressly or impliedly. this guarantee have centered on the contention that it is a limitation on freedom of contract,
a denial of the equal protection of the law, and an impairment of or a limitation on property
rights. The assault is without reason. The law simply provides that the tenancy relationship
Sec. 7. Tenure of Agricultural Leasehold Relation. - The agricultural leasehold relation once
between the landholder and his tenant should be preserved in order to insure the well-being
established shall confer upon the agricultural lessee the right to continue working on the
of the tenant and protect him from being unjustly dispossessed of the land. Its termination
landholding until such leasehold relation is extinguished. The agricultural lessee shall be
can take place only for causes and reasons provided in the law. lt was established pursuant
entitled to security of tenure on his landholding and cannot be ejected therefrom unless
to the social justice precept of the Constitution and in the exercise of the police power of the
authorized by the Court for causes herein provided.
State to promote the common weal. (Primero v. Court of Industrial Relations, G.R. No. L-
10594, May 29, 1957.)
The different laws cited and enumerated above clearly show that the right of the tenant to
the enjoyment and possession of the farmholding had been created and conferred,
Indeed, We find no clear and cogent reason, no logical and legal ground to hold, as the CA
protected and guaranteed therein previous to the enactment of R.A. 3844 and that par. (1) of
held, that RA 6389 abolished the right of the tenant to be reinstated to the enjoyment and
Sec. 36 of said R.A. 3844 did not create such right. The security of tenure of the tenant had
possession of the farmholding in question.
been enjoyed by him long before the passage of R.A. 3844. Hence, it is not correct for the
CA to assume that the right of the tenant to the security of his tenure was abolished by R.A.
6389 when the latter repealed by substitution paragraph (1) of Sec. 36,R.A.3844. There is one final point We cannot ignore, and that is, the undisputed finding of the agrarian
court and not disturbed by the appellate court that the private respondent-landowner has
foisted false representations and committed bad faith in successfully evicting the petitioner-
And more than that, the Supreme Court has upheld the tenant's security of tenure on the
tenant from the landholding. We are bound by such finding of fact. The authority given to
police power of the State in compliance with the mandate of the Constitution expressed in
said landowner to oust the tenant-petitioner was, therefore, vitiated with dishonesty and
Article II, Sec. 5, 193-0 Constitution of the PH, as against alleged impairment of the
malice. We cannot and should not reward such malice and bad faith. On both justiciable and
obligations of contract, a limitation to the freedom of contract and a denial of the equal
equitable grounds, the petitioner herein is entitled to reinstatement and possession such that
protection of the laws, in Primers vs. Court of Agrarian Relations and Sinforoso Quion, L-
it must be deemed that his possession has been continuous and uninterrupted. To dismiss
10594, May 29, 1957, 101 Phil. 675. The Supreme Court, speaking thru Justice Endencia
the present appeal of the tenant is simply a backward step from the social justice and
said:
agrarian progress of the nation, and this Court will not allow nor sanction the same.

The provisions of law assailed as unconstitutional do not impair the right of the landowner to
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the CA is hereby
dispose or alienate his property nor prohibit him to make such transfer or alienation; they
REVERSED and SET ASIDE. The decision of the Court of Agrarian Relations is hereby
only provide that in case of transfer or in case of lease, as in the instant case, the tenancy
ordered reinstated. No costs.
relationship between the landowner and his tenant should be preserved in order to insure
the well-being of the tenant or protect him from being unjustly dispossessed by the
transferee or purchaser of the land; in other words, the purpose of the law in question is to SO ORDERED. Teehankee (Chairman), Makasiar,Fernandez and Melencio-Herrera, JJ.,
maintain the tenants in the peaceful possession and cultivation of the land or afford them concur.
protection against unjustified dismissal from their holdings. RA 1199 is unquestionably a
remedial legislation promulgated pursuant to the social justice precepts of the. Constitution
In dupio pro reo:
and in the exercise of the police power of the State to promote the common weal. It is a
statute relating to public subjects within the domain of the general legislative powers of the
EN BANC
State and involving the public rights and public welfare of the entire community affected by it.
G.R. No. 173473 Dec 17, 2008
RA 1199, like the precious tenancy laws enacted by our lawmaking body, was passed by
PEOPLE OF THE PHILIPPINES, appellee, vs. BETH TEMPORADA, appellant.
Congress in compliance with the constitutional mandates that the promotion of social justice
DECISION
to insure the well-being and economic security of all the people should be the concern of the
State (Art. 11, see. 5 ) and that the State shall regulate the relations between landlord and
tenant ... in agriculture ... . (Art XIV, Sec. 6). YNARES-SANTIAGO, J.:

The constitutional guarantee afforded the tenant's right to security of tenure was further Before us for review is the February 24, 2006 Decision1 of the CA, affirming with modification
emphasized and strengthened in the case of Pineda vs. De Guzman and Feliciano, L- the May 14, 2004 Decision2 of the RTC of Manila, Branch 33, convicting accused-appellant
23773-74, Dec 29, 1967, 21 SCRA 1450, wherein the Supreme Court held - Beth Temporada of the crime of large scale illegal recruitment, or violation of Article 38 of
the Labor Code, as amended, and five (5) counts of estafa under Article 315, par. (2)(a) of
the RPC.
Sec. 49 of the Agricultural Tenancy Act, RA 1199, as amended, enunciates the principle of
security of tenure of the tenant, such that it prescribes that the relationship of landholder and

22
 CRIMINAL LAW I
DAY 3

The antecedents, as found by the appellate court, are as follows: Criminal Case No. 02-208372:

From Sep 2001 to Jan 2002, accused Rosemarie "Baby" Robles, Bernadette Miranda, "The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M.
Nenita Catacotan and Jojo Resco and appellant Beth Temporada, all employees of the MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.
Alternative Travel and Tours Corporation (ATTC), recruited and promised overseas
employment, for a fee, to complainants Rogelio Legaspi, Jr. as technician in
That in or about and during the period comprised between Nov 23, 2001 and Jan 12,
Singapore, and Soledad Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as
2002, inclusive, in the City of Manila, PH, the said accused, conspiring and confederating
factory workers in Hongkong. The accused and appellant were then holding office at
together and helping one another, did then and there willfully, unlawfully and feloniously
Dela Rosa Street, Makati City but eventually transferred business to Discovery Plaza,
defraud ROGELIO A. LEGASPI, JR., in the following manner, to wit: the said accused, by
Ermita, Manila. After complainants had submitted all the requirements consisting of
means of false manifestations and fraudulent representations which they made to said
their respective application forms, passports, NBI clearances and medical certificates,
ROGELIO A. LEGASPI, JR., prior to and even simultaneous with the commission of the
the accused and appellant, on different dates, collected and received from them
fraud, to the effect that they have the power and capacity to recruit and employ
placement fees in various amounts, viz: a) from Rogelio Legaspi, Jr. – 57,600.00; b)
ROGELIO A. LEGASPI, JR., as technician in Singapore and could facilitate the
from Dennis Dimaano – P66,520.00; c) from Evelyn Estacio – P88,520.00; d) from
processing of the pertinent papers if given the necessary amount to meet the
Soledad Atle – P69,520.00 and e) from Luz Minkay – P69,520.00. As none of them
requirements thereof, induced and succeeded in inducing said ROGELIO A. LEGASPI,
was able to leave nor recover the amounts they had paid, complainant lodged
JR., to give and deliver, as in fact he gave and delivered to said accused the amount of
separate criminal complaints against accused and appellant before the City Prosecutor
P57,600.00 on the strength of said manifestations and representations said accused well
of Manila. On Nov 29, 2002, Assistant City Prosecutor Restituto Mangalindan, Jr. filed
knowing that the same were false and fraudulent and were made solely for the purpose
six (6) Informations against the accused and appellant, one for Illegal Recruitment in
of obtaining, as in fact they did obtain the amount of P57,600.00, which amount, once in
Large Scale under Article 38 (a) of the Labor Code as amended, and the rest for five
their possession, with intend to defraud, they willfully, unlawfully and feloniously
(5) counts of estafa under Article 315 paragraph 2 (a) of the RPC.
misappropriated, misapplied and converted the same to their own personal use and
benefit, to the damage and prejudice of said ROGELIO A. LEGASPI, JR. in the aforesaid
The Information for large scale illegal recruitment reads: amount of P57,000.00 Philippine Currency.

Criminal Case No. 02-208371: Contrary to law."

The other four (4) Informations for estafa involve the following complainants and
amounts:
"The undersigned accuses ROSEMARIE "BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x. 1. DENNIS T. DIMAANO P66,520.00

That in or about and during the period comprised between the months of Sep 2001 and 2. EVELYN V. ESTACIO P88,520.00
Jan 2002, inclusive, in the City of Manila, PH, the said accused, representing themselves
to have the power and capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there willfully, unlawfully for a fee, recruit and promise 3. SOLEDAD B. ATLE P69,520.00
employment to REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELEYN V.
ESTACIO, SOLEDAD B. ATTE and LUZ MINKAY without first having secured the required 4. LUZ T. MINKAY P69,520.003
license from the Department of Labor and Employment as required by law, and charge or
accept directly or indirectly from said complainant[s] the amount of PH57,600.00, Only appellant was apprehended and brought to trial, the other accused remained at large.
PH66,520.00, PH88,520.00, PH69,520.00, PH69,520.00, respectively, as placement fees Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. After joint
in consideration for their overseas employment, which amounts are in excess of or greater trial, on May 14, 2004, the RTC rendered judgment convicting appellant of all the charges:
than that specified in the scheduled of allowable fees prescribed of the POEA and without
reasons and without fault of the said complainants, failed to actually deploy them and failed
to reimburse them the expenses they incurred in connection with the documentation and WHEREFORE, the prosecution having established the GUILT of accused Beth
Temporada BEYOND REASONABLE DOUBT, judgment is hereby rendered
processing of their papers for purposes of their deployment.
CONVICTING the said accused, as principal of the offenses charged and she is
sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of Five Hundred
Contrary to law." Thousand Pesos (P500,000.00) for illegal recruitment; and the indeterminate penalty
of four (4) years and two (2) months of prision correctional as minimum, to nine (9)
years and one (1) day of prision mayor, as maximum for the estafa committed against
Except for the name of private complainant and the amount involved, the five (5)
complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four (4) years and
Informations for estafacontain substantially identical averments as follows:
two (2) months of prision correctional as minimum to ten (10) years and one day of
prision mayor as maximum each for the estafas committed against complainants,

23
 CRIMINAL LAW I
DAY 3

Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the indeterminate penalty of fee, employment to two or more persons shall be deemed engaged in recruitment and
four (4) years and two (2) months of prision correctional as minimum, to eleven (11) placement.
years and one (1) day of prision mayor as maximum for the estafa committed against
Evelyn Estacio.
To constitute illegal recruitment in large scale, three (3) elements must concur: (a) the
offender has no valid license or authority required by law to enable him to lawfully engage in
The accused is also ordered to pay jointly and severally the complainants actual recruitment and placement of workers; (b) the offender undertakes any of the activities within
damages as follows: the meaning of "recruitment and placement" under Article 13(b) of the Labor Code, or any of
the prohibited practices enumerated under Article 34 of the said Code (now Sec. 6 of RA
1. Rogelio A. Legaspi Jr. P57,600.00 8042); and, (c) the offender committed the same against three (3) or more persons,
individually or as a group.7
2. Dennis T. Dimaano 66,520.00
In the case at bar, the foregoing elements are present. Appellant, in conspiracy with her co-
3. Evelyn V. Estacio 88,520.00 accused, misrepresented to have the power, influence, authority and business to obtain
overseas employment upon payment of a placement fee which was duly collected from
complainants Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz
4. Soledad B. Atte 66,520.00 Minkay. Further, the certification8 issued by the POEA and the testimony of Ann Abastra
Abas, a representative of said govt agency, established that appellant and her co-accused
5. Luz T. Minkay 69,520.00 did not possess any authority or license to recruit workers for overseas employment. And,
since there were five (5) victims, the trial court correctly found appellant liable for illegal
4 recruitment in large scale.
SO ORDERED.

In accordance with the Court’s ruling in People v. Mateo,5 this case was referred to the CA Appellant insists that she was merely an employee of ATTC and was just "echoing the
for intermediate review. On February 24, 2006, the CA affirmed with modification the requirement of her employer." She further argues that the prosecution failed to prove that she
Decision of the RTC: was aware of the latter’s illegal activities and that she actively participated therein. In essence,
she controverts the factual findings of the lower courts.
WHEREFORE, with MODIFICATION to the effect that in Criminal Cases Nos. 02-
208373, 02-208375, & 02-208376, appellant is sentenced to suffer the indeterminate The contention is untenable.
penalty of six (6) years of prision correccional maximum, as minimum, to 10 years and
one (1) day of prision mayor maximum, as maximum; and in Criminal Case No. 02-
An employee of a company or corporation engaged in illegal recruitment may be held liable as
208374, she is sentenced to suffer the indeterminate penalty of eight (8) years and one principal, together with his employer, if it is shown that he actively and consciously participated
(1) day of prision mayor medium, as minimum, to twelve (12) years and one (1) day in illegal recruitment.9 Appellant actively took part in the illegal recruitment of private
of reclusion temporal minimum, as maximum, the appealed decision is AFFIRMED in complainants. Rogelio Legaspi testified that after introducing herself as the General Manager
all other respects. of ATTC, appellant persuaded him to apply as a technician in Singapore and assured him that
there was a job market therefor. In addition to the placement fee of P35,000.00 which he paid
Before this Court, appellant ascribes the lone error that the trial court gravely erred in finding to accused Bernadette Miranda, he also handed the amount of P10,000.00 to appellant who, in
her guilty of illegal recruitment and five (5) counts of estafa despite the insufficiency of the turn, issued him a receipt for the total amount of P45,000.00. Upon the other hand, Soledad
evidence for the prosecution. Atle and Luz Minkay, who applied as factory workers in Hongkong through co-accused, Emily
Salagonos, declared that it was appellant who briefed them on the requirements for the
processing of their application, and assured them and Dennis Dimaano of immediate
We affirm the Decision of the CA, except as to the indeterminate penalties imposed for the deployment for jobs abroad. For her part, Evelyn Estacio testified that aside from the
five (5) counts of estafa. placement fee of P40,000.00 that she paid to co-accused "Baby" Robles in connection with her
purported overseas employment, she also gave appellant P10,000.00 for which she was
Article 13(b) of the Labor Code defines recruitment and placement thusly: issued a receipt for the amount of P5,000.00.

ART. 13. Definitions. – x x x The totality of the evidence, thus, established that appellant acted as an indispensable
(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, participant and effective collaborator of her co-accused in the illegal recruitment of
transporting, utilizing, hiring or procuring workers, and includes referrals, contract complainants. As aptly found by the CA:
services, promising or advertising for employment, locally or abroad, whether for profit or
not: Provided, That any person or entity which, in any manner, offers or promises for a

24
 CRIMINAL LAW I
DAY 3

Without doubt, all the acts of appellant, consisting of introducing herself to complainants as confidence or by means of deceit; and (2) the offended party or a third party suffered
general manager of ATTC, interviewing and entertaining them, briefing them on the damage or prejudice capable of pecuniary estimation.15 The same evidence proving
requirements for deployment and assuring them that they could leave immediately if they appellant’s criminal liability for illegal recruitment also established her liability for estafa. As
paid the required amounts, unerringly show unity of purpose with those of her co-accused in previously discussed, appellant together with her co-accused defrauded complainants into
their scheme to defraud private complainants through false promises of jobs abroad. There believing that they had the authority and capability to send complainants for overseas
being conspiracy, appellant shall be equally liable for the acts of her co-accused even if she employment. Because of these assurances, complainants parted with their hard-earned
herself did not personally reap the fruits of their execution. We quote with approval the trial money in exchange for the promise of future work abroad. However, the promised overseas
court’s findings on the matter: employment never materialized and neither were the complainants able to recover their
money.
"xxx It is clear that said accused conspired with her co-accused Rosemarie "Baby"
Robles, Bernadette M. Miranda, Nenita Catacotan, and Jojo Resco in convincing While we affirm the conviction for the 5 counts of estafa, we find, however, that the CA
complainants xxx to apply for overseas jobs and giving complainants Soledad Atle, Luz erroneously computed the indeterminate penalties therefor. The CA deviated from the
Minkay and Dennis Dimaano guarantee that they would be hired as factory workers in doctrine laid down in People v. Gabres;16 hence its decision should be reversed with respect
Hongkong, complainant Rogelio Legaspi, as Technician in Singapore and Evelyn to the indeterminate penalties it imposed. The reversal of the appellate court’s Decision on
Estacio as quality controller in a factory in Hongkong, despite the fact that the accused this point does not, however, wholly reinstate the indeterminate penalties imposed by the trial
was not licensed to do so. court because the maximum terms, as determined by the latter, were erroneously computed
and must necessarily be rectified.
It should be noted that all the accused were connected with the Alternative Travel and
Tours Corporation (ATTC). Accused Beth Temporada introduced herself as ATTC’s The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when the amount
General Manager. Saod accused was also the one who received the P10,000.00 given defrauded exceeds P22,000.00, is prisión correccional maximum to prisión mayor minimum.
by complainant Rogelio Legaspi, Jr. and the P10,000.00 given by complainant Evelyn The minimum term is taken from the penalty next lower or anywhere within prisión correccional
Estacio as payment for their visa and plane ticket, respectively."10 minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Consequently,
the RTC correctly fixed the minimum term for the five estafa cases at 4 years and 2 months
of prisión correccional since this is within the range of prisión correccional minimum and
Consequently, the defense of appellant that she was not aware of the illegal nature of the
medium.
activities of her co-accused cannot be sustained. Besides, even assuming arguendo that
appellant was indeed unaware of the illegal nature of said activities, the same is hardly a
defense in the prosecution for illegal recruitment. Under The Migrant Workers and Overseas On the other hand, the maximum term is taken from the prescribed penalty of prisión
Filipinos Act of 1995, a special law, the crime of illegal recruitment in large scale is malum correccional maximum to prisión mayor minimum in its maximum period, adding 1 year of
prohibitum and not malum in se.11 Thus, the criminal intent of the accused is not necessary imprisonment for every P10,000.00 in excess of P22,000.00, provided that the total penalty
and the fact alone that the accused violated the law warrants her conviction. 12 shall not exceed 20 years. However, the maximum period of the prescribed penalty
of prisión correccional maximum to prisión mayor minimum is not prisión mayor minimum as
apparently assumed by the RTC. To compute the maximum period of the prescribed
In the instant case, we find no reason to depart from the rule that findings of fact of the trial
penalty, prisión correccional maximum to prisión mayor minimum should be divided into
court on the credibility of witnesses and their testimonies are generally accorded great
three equal portions of time each of which portion shall be deemed to form one period in
respect by an appellate court. The assessment of credibility of witnesses is a matter best left
accordance with Article 6517 of the RPC. Following this procedure, the maximum period
to the trial court because it is in the position to observe that elusive and incommunicable
of prisión correccional maximum to prisión mayor minimum is from 6 years, 8 months and 21
evidence of the witnesses’ deportment on the stand while testifying, which opportunity is
days to 8 years.18 The incremental penalty, when proper, shall thus be added to anywhere
denied to the appellate courts.13 Further, there is no showing of any ill-motive on the part of
from 6 years, 8 months and 21 days to 8 years, at the discretion of the court. 19
the prosecution witnesses in testifying against appellant. Absent such improper motive, the
presumption is that they were not so actuated and their testimony is entitled to full weight
and credit. In computing the incremental penalty, the amount defrauded shall be subtracted by
P22,000.00, and the difference shall be divided by P10,000.00. Any fraction of a year shall
be discarded as was done starting with the case of People v. Pabalan20 in consonance with
Sec. 7(b) of RA 8042 prescribes the penalty of life imprisonment and a fine of not less than
the settled rule that penal laws shall be construed liberally in favor of the accused. The
P500,000.00 nor more than P1,000,000.00 for the crime of illegal recruitment in large scale
doctrine enunciated in People v. Benemerito21 insofar as the fraction of a year was utilized in
or by a syndicate. The trial court, therefore, properly meted the penalty of life imprisonment
computing the total incremental penalty should, thus, be modified. In accordance with the
and a fine of P500,000.00 on the appellant.
above procedure, the maximum term of the indeterminate sentences imposed by the RTC
should be as follows:
Anent the conviction of appellant for five (5) counts of estafa, we, likewise, affirm the same.
Well-settled is the rule that a person convicted for illegal recruitment under the Labor Code
In Criminal Case No. 02-208372, where the amount defrauded was P57,600.00, the RTC
may, for the same acts, be separately convicted for estafa under Art 315, par. 2(a) of the
sentenced the accused to an indeterminate penalty of 4 years and 2 months of prisión
RPC.14 The elements of estafa are: (1) the accused defrauded another by abuse of

25
 CRIMINAL LAW I
DAY 3

correccional as minimum, to 9 years and 1 day of prisión mayor as maximum. Since the For purposes of this discussion, it is necessary to first clarify the meaning of certain terms in
amount defrauded exceeds P22,000.00 by P35,600.00, 3 years shall be added to the the sense that they will be used from here on. Later, these terms shall be aligned to what the
maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months dissent appears to be proposing in order to clearly address the points raised by the dissent.
and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore,
that can be validly imposed is 9 years, 8 months and 21 days of prisión mayor, and not 9
The RPC provides for an initial penalty as a general prescription for the felonies defined
years and 1 day of prisión mayor.
therein which consists of a range of period of time. This is what is referred to as the
"prescribed penalty." For instance, under Article 24922 of the RPC, the prescribed penalty
In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the amounts for homicide is reclusión temporal which ranges from 12 years and 1 day to 20 years of
defrauded were P66,520.00, P69,520.00, and P69,520.00, respectively, the accused was imprisonment. Further, the Code provides for attending or modifying circumstances which
sentenced to an indeterminate penalty of 4 years and 2 months of prisión correccional as when present in the commission of a felony affects the computation of the penalty to be
minimum, to 10 years and 1 day of prisión mayor as maximum for each of the aforesaid imposed on a convict. This penalty, as thus modified, is referred to as the "imposable
three estafa cases. Since the amounts defrauded exceed P22,000.00 by P44,520.00, penalty." In the case of homicide which is committed with one ordinary aggravating
P47,520.00, and P47,520.00, respectively, 4 years shall be added to the maximum period of circumstance and no mitigating circumstances, the imposable penalty under the RPC shall
the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 be the prescribed penalty in its maximum period. From this imposable penalty, the court
years, at the discretion of the court). The lowest maximum term, therefore, that can be chooses a single fixed penalty (also called a straight penalty) which is the "penalty actually
validly imposed is 10 years, 8 months and 21 days of prisión mayor, and not 10 years and 1 imposed" on a convict, i.e., the prison term he has to serve.
day of prisión mayor.
Concretely, in U.S. v. Saadlucap,23 a pre-ISL case, the accused was found guilty of
Finally, in Criminal Case No. 02-208374, where the amount defrauded was P88,520.00, the homicide with a prescribed penalty of reclusión temporal. Since there was one ordinary
accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisión aggravating circumstance and no mitigating circumstances in this case, the imposable
correccional as minimum, to 11 years and 1 day of prisión mayor as maximum. Since the penalty is reclusión temporal in its maximum period, i.e., from 17 years, 4 months and 1 day
amount defrauded exceeds P22,000.00 by P66,520.00, 6 years shall be added to the to 20 years. The court then had the discretion to impose any prison term provided it is within
maximum period of the prescribed penalty (or added to anywhere from 6 years, 8 months said period, so that the penalty actually imposed on the accused was set at 17 years, 4
and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, months and 1 day of reclusión temporal,24 which is a single fixed penalty, with no minimum
that can be validly imposed is 12 years, 8 months and 21 days of reclusión temporal, and or maximum term.
not 11 years and 1 day of prisión mayor.
With the passage of the ISL, the law created a prison term which consists of a minimum
Response to the dissent. and maximum term called the indeterminate sentence.25 Sec. 1 of the ISL provides –

In the computation of the indeterminate sentence for estafa under Article 315, par. 2(a) of SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the
the RPC , the Court has consistently followed the doctrine espoused in Pabalan and more RPC, or its amendments, the court shall sentence the accused to an indeterminate
fully explained in Gabres.The dissent argues that Gabres should be reexamined and sentence the maximum term of which shall be that which, in view of the attending
abandoned. circumstances, could be properly imposed under the rules of said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by
the Code for the offense; x x x.
We sustain Gabres.

Thus, the maximum term is that which, in view of the attending circumstances, could be
I.
properly imposed under the RPC. In other words, the penalty actually imposed under the
The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T. Reyes, i.e., the
pre-ISL regime became the maximum term under the ISL regime. Upon the other hand, the
maximum term shall first be computed by applying the incremental penalty rule, and thereafter
minimum term shall be within the range of the penalty next lower to the prescribed penalty.
the minimum term shall be determined by descending one degree down the scale of penalties
To illustrate, if the case of Saadlucap was decided under the ISL regime, then the maximum
from the maximum term, is a novel but erroneous interpretation of the ISL in relation to Art 315,
term would be 17 years, 4 months and 1 day of reclusión temporal and the minimum term
par. 2(a) of the RPC. Under this interpretation, it is not clear how the maximum and minimum
could be anywhere within the range of prisión mayor (6 years and 1 day to 12 years) which
terms shall be computed. Moreover, the legal justification therefor is not clear because the
is the penalty next lower to reclusión temporal. Consequently, an indeterminate sentence of
meaning of the terms "penalty," "prescribed penalty," "penalty actually imposed," "minimum
10 years of prisión mayor as minimum to 17 years, 4 months and 1 day of reclusión
term," "maximum term," "penalty next lower in degree," and "one degree down the scale of
temporal as maximum could have possibly been imposed.
penalties" are not properly set out and are, at times, used interchangeably, loosely and
erroneously.
If we use the formula as proposed by the dissent, i.e., to compute the minimum term based
on the maximum term after the attending or modifying circumstances are considered, the
basis for computing the minimum term, under this interpretation, is the imposable

26
 CRIMINAL LAW I
DAY 3

penalty26 as hereinabove defined. This interpretation is at odds with Sec. 1 of the ISL which the broad question of the factors and circumstances that should guide the discretion of
clearly states that the minimum of the indeterminate sentence shall be "within the range of the court in fixing the minimum penalty within the ascertained limits.
the penalty next lower to that prescribed by the Code for the offense." Consequently, the
basis for fixing the minimum term is the prescribed penalty, 27 and not the imposable penalty.
xxxx

In People v. Gonzales,28 the Court held that the minimum term must be based on the penalty
We come now to the second aspect of the determination of the minimum penalty,
prescribed by the Code for the offense "without regard to circumstances modifying criminal
namely, the considerations which should guide the court in fixing the term or duration
liability."29 The Gonzales’ ruling that the minimum term must be based on the prescribed
of the minimum period of imprisonment. Keeping in mind the basic purpose of the
penalty "without regard to circumstances modifying criminal liability" is only a restatement of
Indeterminate Sentence Law "to uplift and redeem valuable human material, and
Sec. 1 of the ISL that the minimum term shall be taken from within the range of the penalty
prevent unnecessary and excessive deprivation of personal liberty and economic
next lower to the prescribed penalty (and from nowhere else). 30
usefulness" (Message of the Governor-General, Official Gazette No. 92, vol. XXXI,
Aug 3, 1933), it is necessary to consider the criminal, first, as an individual and,
Further, the dissent proceeds from the erroneous premise that its so-called "regular formula" second, as a member of society. This opens up an almost limitless field of investigation
has generally been followed in applying the ISL. To reiterate, according to the dissent, the and study which it is the duty of the court to explore in each case as far as is humanly
"regular formula" is accomplished by first determining the maximum term after considering possible, with the end in view that penalties shall not be standardized but fitted as far
all the attending circumstances; thereafter, the minimum term is arrived at by going one as is possible to the individual, with due regard to the imperative necessity of
degree down the scale from the maximum term. As previously discussed, this essentially protecting the social order.
means, using the terms as earlier defined, that the minimum term shall be taken from the
penalty next lower to the imposable penalty (and not the prescribed penalty.) In more
Considering the criminal as an individual, some of the factors that should be
concrete terms and using the previous example of homicide with one ordinary aggravating
considered are: (1) His age, especially with reference to extreme youth or old age; (2)
circumstance, this would mean that the minimum term for homicide will no longer be based
his general health and physical condition; (3) his mentality, heredity and personal
on reclusión temporal (i.e., the prescribed penalty for homicide) but reclusión temporal in its
habits; (4) his previous conduct, environment and mode of life (and criminal record if
maximum period (i.e., the imposable penalty for homicide with one ordinary aggravating
any); (5) his previous education, both intellectual and moral; (6) his proclivities and
circumstance) so much so that the minimum term shall be taken from reclusión temporal in
aptitudes for usefulness or injury to society; (7) his demeanor during trial and his
its medium period (and no longer from prisión mayor) because this is the penalty next lower
attitude with regard to the crime committed; (8) the manner and circumstances in
to reclusión temporal in its maximum period. The penalty from which the minimum term is
which the crime was committed; (9) the gravity of the offense (note that section 2 of
taken is, thus, significantly increased. From this example, it is not difficult to discern why
Act No. 4103 excepts certain grave crimes – this should be kept in mind in assessing
this interpretation radically departs from how the ISL has generally been applied by
the minimum penalties for analogous crimes).
this Court. The dissent’s"regular formula" is, therefore, anything but regular.

In considering the criminal as a member of society, his relationship, first, toward

In fine, the "regular formula" espoused by the dissent deviates from the ISL and established
his dependents, family and associates and their relationship with him, and second,
jurisprudence and is, thus, tantamount to judicial legislation.
his relationship towards society at large and the State are important factors. The
State is concerned not only in the imperative necessity of protecting the social
II. organization against the criminal acts of destructive individuals but also in
There is no absurdity or injustice in fixing or "stagnating" the minimum term within the range redeeming the individual for economic usefulness and other social ends. In a
of prisión correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 word, the Indeterminate Sentence Law aims to individualize the administration of
months). Preliminarily, it must be emphasized that the minimum term taken from the our criminal law to a degree not heretofore known in these Islands. With the
aforementioned range of penalty need not be the same for every case of estafa when the foregoing principles in mind as guides, the courts can give full effect to the
amount defrauded exceeds P12,000.00. In People v. Ducosin,31 the Court provided some beneficent intention of the Legislature.33
guidelines in imposing the minimum term from the range of the penalty next lower to the
prescribed penalty:
Admittedly, it is possible that the court, upon application of the guidelines in Ducosin, will
impose the same minimum term to one who commits an estafa involving P13,000.00 and
We come now to determine the "minimum imprisonment period" referred to in Act No. another involving P130 million. In fact, to a lesser degree, this is what happened in the
4103. Sec. 1 of said Act provides that this "minimum which shall not be less than the instant case where the trial court sentenced the accused to the same minimum term of 4
minimum imprisonment period of the penalty next lower to that prescribed by said years and 2 months of prisión correccional in Criminal Case Nos. 02-208372, 02-208373,
Code for the offense."32 We are here upon new ground. It is in determining the 02-208375, 02-208376, and 02-208374 where the amounts defrauded were P57,600.00,
"minimum" penalty that Act No. 4103 confers upon the courts in the fixing of penalties P66,520.00, P69,520.00, P69,520.00 and P88,520.00, respectively. However, there is no
the widest discretion that the courts have ever had. The determination of the absurdity and injustice for two reasons.
"minimum" penalty presents two aspects: first, the more or less mechanical
determination of the extreme limits of the minimum imprisonment period; and second,

27
 CRIMINAL LAW I
DAY 3

One, while it is possible that the minimum term imposed by a court would be the same, the The instant case involves a violation of Art 315, par. 2(a) of the RPC.43 The penalty for said
maximum term would be greater for the convict who committed estafa involving P130 million violation is–
(which would be 20 years of reclusion temporal) than the convict who swindled P13,000.00
(which could be anywhere from prisión correccional maximum to prisión mayor minimum or
ARTICLE 315. Swindling (Estafa). – Any person who shall defraud another by any of
from 4 years, 2 months and 1 day to 8 years).34 Assuming that both convicts qualify for
the means mentioned hereinbelow shall be punished by:
parole after serving the same minimum term, the convict sentenced to a higher maximum
term would carry a greater "burden" with respect to the length of parole surveillance which
he may be placed under, and the prison term to be served in case he violates his parole as 1st. The penalty of prisión correccional in its maximum period to prisión mayor in its
provided for in Sec.s 635 and 836 of the ISL. Under Sec. 6, the convict shall be placed under minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed
a period of surveillance equivalent to the remaining portion of the maximum sentence 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
imposed upon him or until final release and discharge by the Board of Pardon and Paroles. paragraph shall be imposed in its maximum period, adding one year for each
Further, the convict with the higher maximum term would have to serve a longer period upon additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
his re-commitment in prison in case he violates his parole because he would have to serve twenty years. In such cases, and in connection with the accessory penalties which may
the remaining portion of the maximum term, unless the Board of Pardon and Paroles shall, be imposed and for the purpose of the other provisions of this Code, the penalty shall
in its discretion, grant a new parole to the said convict as provided for in Sec. 8. be termed prisión mayor or reclusión temporal, as the case may be. x x x

Although the differences in treatment are in the nature of potential liabilities, to this limited In contrast, Romero, De Carlos, and Salazar involved violations of Article 315 of the RPC as
extent, the ISL still preserves the greater degree of punishment in the RPC for a convict who amended by Presidential Decree (P.D.) No. 168944 because: (1) the funds defrauded were
commits estafa involving a greater amount as compared to one who contributed by stockholders or solicited by corporations/associations from the general public,
commits estafa involving a lesser amount. Whether these differences in treatment are (2) the amount defrauded was greater than P100,000.00, and (3) the estafa was not
sufficient in substance and gravity involves a question of wisdom and expediency of committed by a syndicate. Sec. 1 of P.D. No. 1689 provides–
the ISL that this Court cannot delve into.
Sec. 1. Any person or persons who shall commit estafa or other forms of swindling as
Two, the rule which provides that the minimum term is taken from the range of the penalty defined in Article 315 and 316 of the RPC, as amended, shall be punished by life
next lower to the prescribed penalty is, likewise, applicable to other offenses punishable imprisonment to death if the swindling (estafa) is committed by a syndicate consisting
under the RPC. For instance, the minimum term for an accused guilty of homicide with one of five or more persons formed with the intention of carrying out the unlawful or illegal
generic mitigating circumstance vis-à-vis an accused guilty of homicide with three ordinary act, transaction, enterprise or scheme, and the defraudation results in the
aggravating circumstances would both be taken from prisión mayor – the penalty next lower misappropriation of money contributed by stockholders, or members of rural banks,
to eclusion temporal. Evidently, the convict guilty of homicide with three ordinary aggravating cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by
circumstances committed a more perverse form of the felony. Yet it is possible that the corporations/associations from the general public.
court, after applying the guidelines in Ducosin, will impose upon the latter the same
minimum term as the accused guilty of homicide with one generic mitigating circumstance.
When not committed by a syndicate as above defined, the penalty imposable
This reasoning can be applied mutatis mutandis to most of the other offenses punishable
shall be reclusión temporal to reclusión perpetua if the amount of the fraud
under the RPC. Should we then conclude that the ISL creates absurd results for these
exceeds 100,000 pesos. (Emphasis supplied)
offenses as well?

In fine, what is perceived as absurd and unjust is actually the intent of the legislature to be Since the prescribed penalty is reclusión temporal to reclusión perpetua, the minimum terms
beneficial to the convict in order to "uplift and redeem valuable human material, and prevent were taken from prisión mayor, which is the penalty next lower to the prescribed
unnecessary and excessive deprivation of personal liberty and economic usefulness."37 By penalty.45 As can be seen, these cases involved a different penalty structure that does not
make use of the incremental penalty rule due to the amendatory law. Thus, the comparison
the legislature’s deliberate design, the range of penalty from which the minimum term is
taken remains fixed and only the range of penalty from which the maximum term is taken of these cases with Gabres is improper.
changes depending on the number and nature of the attending circumstances. Again, the
reason why the legislature elected this mode of beneficence to a convict revolves on Meanwhile, in Dinglasan, the felony committed was estafa through bouncing checks which is
questions of wisdom and expediency which this Court has no power to review. The punishable under Article 315 par. 2(d) of the RPC as amended by RA (RA) No. 488546–
balancing of the State’s interests in deterrence and retributive justice vis-à-vis reformation
and reintegration of convicts to society through penal laws belongs to the exclusive domain
of the legislature. Sec. 1. Sec. Two, Paragraph (d), Article Three hundred fifteen of Act Numbered
Thirty-eight hundred and fifteen is hereby amended to read as follows:

III.
People v. Romero,38 De Carlos v. CA,39 Salazar v. People,40 People v. Dinglasan41 and, by "Sec. 2. By means of any of the following false pretenses or fraudulent acts
42
analogy, People v. Dela Cruz do not support the formula being proposed by the dissent. executed prior to or simultaneously with the commission of the fraud:

28
 CRIMINAL LAW I
DAY 3

"(d) By postdating a check, or issuing a check in payment of an obligation when the imposed in its maximum period when the value of the thing stolen or the amount defrauded,
offender had no funds in the bank, or his funds deposited therein were not sufficient to as the case may be, exceeds P22,000.00, and (2) provides for an incremental penalty of 1
cover the amount of the check. The failure of the drawer of the check to deposit the year imprisonment for every P10,000.00 in excess of P22,000.00. It should be pointed out,
amount necessary to cover his check within three (3) days from receipt of notice from however, that the prescribed penalty for simple theft is prisión mayor minimum and medium
the bank and/or the payee or holder that said check has been dishonored for lack or while in estafa it is lower at prisión correccionalmaximum to prisión mayor minimum.
insufficiency of funds shall be prima facie evidence of deceit constituting false pretense
or fraudulent act."
Being two degrees higher, the prescribed penalty for qualified theft is, thus, reclusión
temporal medium and maximum, while the minimum term is taken from the range of prisió5n
and P.D. No. 81847– mayor maximum to reclusión temporalminimum, which is the penalty next lower to reclusión
temporal medium and maximum. The penalty next lower to the prescribed penalty is
determined without first considering the amount stolen in excess of P22,000.00 consistent
Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent
with Gabres. In fact, Dela Cruz expressly cites Gabres–
acts as defined in paragraph 2(d) of Article 315 of the RPC, as amended by RA No. 4885,
shall be punished by:
Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty
shall be anywhere within the range of the penalty next lower in degree to that
1st. The penalty of reclusión temporal if the amount of the fraud is over 12,000
prescribed for the offense, without first considering any modifying circumstance
pesos but not exceed 22,000 pesos, and if such amount exceeds the latter sum,
attendant to the commission of the crime. Since the penalty prescribed by law
the penalty provided in this paragraph shall be imposed in its maximum period,
is reclusion temporal
adding one year for each additional 10,000 pesos but the total penalty which may
medium and maximum, the penalty next lower would be prisión mayor in its maximum
be imposed shall in no case exceed 30 years. In such cases, and in connection
period to reclusión temporal in its minimum period. Thus, the minimum of the
with the accessory penalties which may be imposed under the RPC, the penalty
indeterminate sentence shall be anywhere within 10 years and 1 day to 14 years and 8
shall be termed reclusión perpetua; x x x (Emphasis supplied)
months.

Here, the prescribed penalty of prisión correccional maximum to prisión mayor minimum was
The maximum of the indeterminate penalty is that which, taking into consideration the
increased to reclusión temporal by the amendatory law. Consequently, the penalty next
attending circumstances, could be properly imposed under the RPC. Since the
lower to reclusión temporal is prisión mayor from which the minimum term was taken. This is
amount involved in the present case exceeds P22,000.00, this should be taken
the reason for the higher minimum term in this case as compared to Gabres. In fact,
as analogous to modifying circumstances in the imposition of the maximum
Dinglasan is consistent with Gabres–
term of the full indeterminate sentence, not in the initial determination of the
indeterminate penalty. (citing Gabres) Thus, the maximum term of the indeterminate
Since the face value of Check No. 029021, for which appellant is criminally liable penalty in this case is the maximum period of reclusión temporal medium and
for estafa, exceeds P22,000, the penalty abovecited must be "imposed in its maximum, which ranges from eighteen (18) years, two (2) months, and twenty one
maximum period, adding 1 year for each additional P10,000." Pursuant to People (21) days to twenty (20) years, as computed pursuant to Article 65, in relation to Article
vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence shall 64 of the RPC.50 (Emphasis supplied)
be imposed on the accused, computed favorably to him. In this case, the
indeterminate sentence should be computed based on the maximum period
Clearly, none of these cases supports the Dissenting Opinion’s thesis that the
of reclusión temporal as maximum, which is from 17 years, 4 months, and 1 day to
minimum term should be computed based on the maximum term. Quite the contrary,
20 years. The minimum period of the sentence should be within the penalty
Dinglasan and Dela Cruz are consistent with Gabres.
next lower in degree as provided in the RPC, i.e., prisión mayor, which is
from 6 years and 1 day to 12 years imprisonment. Considering that the excess
of the fraud committed, counting from the base of P22,000, is only P4,400, which IV.
is less than the P10,000 stated in P.D. 818, there is no need to add one year to The argument that the incremental penalty rule should not be considered as analogous to a
the maximum penalty abovecited.48 (Emphasis supplied) modifying circumstance stems from the erroneous interpretation that the "attending
circumstances" mentioned in Sec. 1 of the ISL are limited to those modifying circumstances
falling within the scope of Articles 13 and 14 of the RPC. Sec. 1 of the ISL is again quoted
As in Gabres, the penalty next lower (i.e., prisión mayor) was determined without
below –
considering in the meantime the effect of the amount defrauded in excess of P22,000.00 on
the prescribed penalty (i.e., reclusión temporal).
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by
the RPC, or its amendments, the court shall sentence the accused to an
Finally, Dela Cruz involved a case for qualified theft. The prescribed penalty for qualified
indeterminate sentence the maximum term of which shall be that which, in view
theft is two degrees higher than simple theft. Incidentally, the penalty structure for simple
of the attending circumstances, could be properly imposed under the rules
theft49 and estafa is similar in that both felonies (1) requires that the prescribed penalty be
of said Code, and the minimum which shall be within the range of the penalty

29
 CRIMINAL LAW I
DAY 3

next lower to that prescribed by the Code for the offense; x x x (Emphasis excess of P22,000.00, provided that the total penalty which may be imposed shall not
supplied) exceed 20 years. This incremental penalty rule is a special rule applicable to estafa and
theft. In the case of estafa, the incremental penalty is added to the maximum period of the
prescribed penalty (or to anywhere from 6 years, 8 months and 21 days to 8 years) at the
The plain terms of the ISL show that the legislature did not intend to limit "attending
discretion of the court, in order to arrive at the penalty actually imposed (i.e., the maximum
circumstances" as referring to Articles 13 and 14 of the RPC. If the legislature intended that
term, within the context of the ISL).
the "attending circumstances" under the ISL be limited to Articles 13 and 14, then it could
have simply so stated. The wording of the law clearly permits other modifying circumstances
This unique characteristic of the incremental penalty rule does not pose any obstacle to
outside of Articles 13 and 14 of the RPC to be treated as "attending circumstances" for
interpreting it as analogous to a modifying circumstance, and, hence, falling within the letter
purposes of the application of the ISL, such as quasi-recidivism under Article 16051 of the
and spirit of "attending circumstances" for purposes of the application of the ISL. Under the
RPC. Under this provision, "any person who shall commit a felony after having been
wording of the ISL, "attending circumstances" may be reasonably interpreted as referring to
convicted by final judgment, before beginning to serve such sentence, or while serving the
such circumstances that are applied in conjunction with certain rules in the Code in order to
same, shall be punished by the maximum period of the penalty prescribed by law for the
determine the penalty to be actually imposed based on the prescribed penalty of the Code
new felony." This circumstance has been interpreted by the Court as a special aggravating
for the offense. The incremental penalty rule substantially meets this standard. The
circumstance where the penalty actually imposed is taken from the prescribed penalty in its
circumstance is the amount defrauded in excess of P22,0000.00 and the incremental
maximum period without regard to any generic mitigating circumstances. 52 Since quasi-
penalty rule is utilized to fix the penalty actually imposed. At its core, the incremental penalty
recidivism is considered as merely a special aggravating circumstance, the penalty next
rule is merely a mathematical formula for computing the penalty to be actually imposed
lower in degree is computed based on the prescribed penalty without first considering said
using the prescribed penalty as starting point. Thus, it serves the same function of
special aggravating circumstance as exemplified in People v. Manalo53 and People v.
determining the penalty actually imposed as the modifying circumstances under Arts 13, 14,
Balictar.54
and 160 of the RPC, although the manner by which the former accomplishes this function
differs with the latter. For this reason, the incremental penalty rule may be considered as
The question whether the incremental penalty rule is covered within the letter and spirit of merely analogous to modifying circumstances. Besides, in case of doubt as to whether the
"attending circumstances" under the ISL was answered in the affirmative by the Court incremental penalty rule falls within the scope of "attending circumstances" under the
in Gabres when it ruled therein that the incremental penalty rule is analogous to a modifying ISL, the doubt should be resolved in favor of inclusion because this interpretation is
circumstance. more favorable to the accused following the time-honored principle that penal statutes are
construed strictly against the State and liberally in favor of the accused. 56Thus, even if the
Dissenting Opinion’s interpretation is gratuitously conceded as plausible, as between
Article 315 of the RPC pertinently provides – Gabres and the dissent’s interpretation, Gabres should be sustained since it is the
interpretation more favorable to the accused.
ARTICLE 315. Swindling (Estafa). – Any person who shall defraud another by any V.
of the means mentioned hereinbelow shall be punished by: The claim that the maximum term should only be one degree away from the minimum
term does not make sense within the meaning of "degrees" under the RPC because
the minimum and maximum terms consist of single fixed penalties. At any rate, the
1st. The penalty of prisión correccional in its maximum period to prisión mayor in its point seems to be that the penalty from which the minimum term is taken should only be one
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed degree away from the penalty from which the maximum term is taken.
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each As a general rule, the application of modifying circumstances, the majority being generic
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed mitigating and ordinary aggravating circumstances, does not result to a maximum term fixed
twenty years. In such cases, and in connection with the accessory penalties which may beyond the prescribed penalty. At most, the maximum term is taken from the prescribed
be imposed and for the purpose of the other provisions of this Code, the penalty shall penalty in its maximum period. Since the maximum term is taken from the prescribed penalty
be termed prisión mayor or reclusión temporal, as the case may be. x x x and the minimum term is taken from the next lower penalty, then, in this limited sense, the
difference would naturally be only one degree. Concretely, in the case of homicide with one
Under Gabres, prisión correccional maximum to prisión mayor minimum is the prescribed ordinary aggravating circumstance, the maximum term is taken from reclusión temporal in its
penalty55 for estafa when the amount defrauded exceeds P22k. An amount defrauded in maximum period which is within the prescribed penalty of reclusión temporal, while the
excess of P22k is effectively considered as a special aggravating circumstance in the sense minimum term is taken from prisión mayor which is the penalty next lower to reclusión
that the penalty actually imposed shall be taken from the prescribed penalty in its maximum temporal; hence, the one-degree difference observed by the dissent.
period without regard to any generic mitigating circumstances. Consequently, the penalty
next lower in degree is still based on the prescribed penalty without in the meantime In comparison, under the incremental penalty rule, the maximum term can exceed the
considering the effect of the amount defrauded in excess of P22,000.00. prescribed penalty. Indeed, at its extreme, the maximum term can be as high as 20 years
of reclusión temporal while the prescribed penalty remains at prisión correccional maximum
What is unique, however, with the afore-quoted provision is that when the amount defrauded to prisión mayor minimum, hence, the penalty next lower to the prescribed penalty from
is P32,000.00 or more, the prescribed penalty is not only imposed in its maximum period but which the minimum term is taken remains at anywhere within prisión correccional minimum
there is imposed an incremental penalty of 1 year imprisonment for every P10,000.00 in

30
 CRIMINAL LAW I
DAY 3

and medium, or from 6 months and 1 day to 4 years and 2 months. In this sense, the or favor," resist encroachments by govts, political parties, or even the interference of
incremental penalty rule deviates from the afore-stated general rule.57 their own personal beliefs.59
VII.
However, it is one thing to say that, generally, the penalty from which the minimum term is Mr. Justice Adolfo S. Azcuna proposes an interpretation of the incremental penalty rule
taken is only one degree away from the penalty from which the maximum term is taken, and based on the phrases "shall be termed prisión mayor or reclusión temporal, as the case may
completely another thing to claim that the penalty from which the minimum term is be" and "for the purpose of the other provisions of this Code" found in the last sentence of
taken should only be one degree away from the penalty from which the maximum term is said rule, viz:
taken.
ARTICLE 315. Swindling (Estafa). – Any person who shall defraud another by any
The one-degree difference is merely the result of a general observation from the application of
of the means mentioned hereinbelow shall be punished by:
generic mitigating and ordinary aggravating circumstances in the RPC in relation to the
ISL. Nowhere does the ISL refer to the one-degree difference as an essential requisite of an
"attending circumstance." If the application of the incremental penalty rule deviates from the one- 1st. The penalty of prisión correccional in its maximum period to prisión mayor in its
degree difference, this only means that the law itself has provided for an exception thereto. minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed
Verily, the one-degree difference is a mere consequence of the generic mitigating and ordinary 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
aggravating circumstances created by the legislature. The difficulty of the dissent with the paragraph shall be imposed in its maximum period, adding one year for each additional
deviation from its so-called one-degree difference rule seems to lie with the inability to view 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty
these "attending circumstances" as mere artifacts or creations of the legislature. It does not years. In such cases, and in connection with the accessory penalties which may
make sense to argue that the legislature cannot formulate "attending circumstances" that be imposed and for the purpose of the other provisions of this Code, the penalty
operate differently than these generic mitigating and ordinary aggravating circumstances, and shall be termed prisión mayor or reclusión temporal, as the case may be. x x x
that, expectedly, leads to a different result from the one-degree difference–for it would be to say (Emphasis supplied)
that the creator can only create one species of creatures. Further, it should be reasonably
assumed that the legislature was aware of these special circumstances, like the incremental
penalty rule or privileged mitigating circumstances, at the time it enacted the ISL as well as the While this interpretation is plausible, Gabres should still be sustained because in construing
consequent effects of such special circumstances on the application of said law. Thus, for as penal statutes, as between two reasonable60 but contradictory constructions, the one more
favorable to the accused should be upheld, which in this case is Gabres. The reason for this
long as the incremental penalty rule is consistent with the letter and spirit of "attending
circumstances" under the ISL, there is no obstacle to its treatment as such. rule is elucidated in an eminent treatise on statutory construction in this wise:

VI. It is an ancient rule of statutory construction that penal statutes should be strictly
Much has been said about the leniency, absurdity and unjustness of the result construed against the govt or parties seeking to enforce statutory penalties and in
under Gabres; the need to adjust the minimum term of the indeterminate penalty to make it favor of the persons on whom penalties are sought to be imposed. This
commensurate to the gravity of the estafa committed; the deterrence effect of a stiffer simply means that words are given their ordinary meaning and that any
imposition of penalties; and a host of other similar reasons to justify the reversal of Gabres. reasonable doubt about the meaning is decided in favor of anyone
However, all these relate to policy considerations beyond the wording of the ISL in relation to subjected to a criminal statute. This canon of interpretation has been accorded
the RPC; considerations that if given effect essentially seek to rewrite the law in order to the status of a constitutional rule under principles of due process, not subject to
conform to one notion (out of an infinite number of such notions) of wisdom and efficacy, abrogation by statute.
and, ultimately, of justice and mercy.
The rule that penal statutes should be strictly construed has several justifications
This Court is not the proper forum for this sort of debate. The Constitution forbids it, and the based on a concern for the rights and freedoms of accused individuals. Strict
principle of separation of powers abhors it. The Court applies the law as it finds it and not as construction can assure fairness when courts understand it to mean that penal
how it thinks the law should be. Not too long ago in the case of People v. Veneracion,58 this statutes must give a clear and unequivocal warning, in language people generally
Court spoke about the dangers of allowing one’s personal beliefs to interfere with the duty to understand, about actions that would result in liability and the nature of potential
uphold the Rule of Law which, over a decade later, once again assumes much relevance in penalties. A number of courts have said:
this case:
… the rule that penal statutes are to be strictly construed … is a
Obedience to the rule of law forms the bedrock of our system of justice. If judges, fundamental principle which in our judgment will never be altered. Why?
under the guise of religious or political beliefs were allowed to roam unrestricted Because the lawmaking body owes the duty to citizens and subjects of
beyond boundaries within which they are required by law to exercise the duties of their making unmistakably clear those acts for the commission of which the
office, the law becomes meaningless. A govt of laws, not of men excludes the exercise citizen may lose his life or liberty. Therefore, all the canons of
of broad discretionary powers by those acting under its authority. Under this system, interpretation which apply to civil statutes apply to criminal statutes, and
judges are guided by the Rule of Law, and ought "to protect and enforce it without fear in addition there exists the canon [of strict construction] …. The burden

31
 CRIMINAL LAW I
DAY 3

lies on the lawmakers, and inasmuch as it is within their power, it is their

duty to relieve the situation of all doubts.
xxxx
Additionally, strict construction protects the individual against arbitrary discretion
by officials and judges. As one judge noted: "the courts should be particularly
careful that the bulwarks of liberty are not overthrown, in order to reach an
offender who is, but perhaps ought not to be, sheltered behind them."

But also, for a court to enforce a penalty where the legislature has not
clearly and unequivocally prescribed it could result in judicial usurpation of
the legislative function. One court has noted that the reason for the rule is "to
guard against the creation, by judicial construction, of criminal offenses not within
the contemplation of the legislature." Thus the rule requires that before a person
can be punished his case must be plainly and unmistakably within the statute
sought to be applied. And, so, where a statute is open to more than one
interpretation, it is strictly construed against the state. Courts further rationalize
this application of the rule of strict construction on the ground that it was not the
defendant in the criminal action who caused ambiguity in the statute. Along these
same lines, courts also assert that since the state makes the laws, they should be
most strongly construed against it.61 (Emphasis supplied; citations omitted)

Thus, in one case, where the statute was ambiguous and permitted two reasonable
interpretations, the construction which would impose a less severe penalty was adopted. 62

WHEREFORE, the Decision of the CA is MODIFIED with respect to the indeterminate

penalties imposed on appellant for the five (5) counts of estafa, to wit:

(1) In Criminal Case No. 02-208372, the accused is sentenced to an indeterminate

penalty of 4 years and 2 months of prisión correccional as minimum, to 9 years, 8
months and 21 days of prisión mayor as maximum.

(2) In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the accused is
sentenced to an indeterminate penalty of 4 years and 2 months of prisión
correccional as minimum, to 10 years, 8 months and 21 days of prisión mayor as
maximum for each of the aforesaid three estafa cases.

(3) In Criminal Case No. 02-208374, the accused is sentenced to an indeterminate

penalty of 4 years and 2 months of prisión correccional as minimum, to 12 years,
8 months and 21 days of reclusión temporal as maximum.

In all other respects, the Decision of the CA is AFFIRMED. SO ORDERED.

32