Republic of the Philippines SUPREME COURT Manila SPECIAL THIRD DIVISION G.R. No.

170146 June 8, 2011

officer.3 The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial.4 With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the criminal and administrative complaints against him, including the charge subject of the proceedings before the PAGC and OP. It is argued that the Office of the Ombudsman as a constitutional body, pursuant to its mandate under R.A. No. 6770, has primary jurisdiction over cases cognizable by the Sandiganbayan, as against the PAGC which is not a constitutional body but a mere creation of the OP. Under said law, it is the Ombudsman who has disciplinary authority over all elective and appointive officials of the government, such as herein respondent. The argument is untenable. The same wrongful act committed by the public officer can subject him to civil, administrative and criminal liabilities. We held in Tecson v. Sandiganbayan5: [I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. (Italics in the original.) Dismissal of a criminal action does not foreclose institution of an administrative proceeding against the same respondent, nor carry with it the relief from administrative liability. 6 Res judicata did not set in because there is no identity of causes of action. Moreover, the decision of the Ombudsman dismissing the criminal complaint cannot be considered a valid and final judgment. On the criminal complaint, the Ombudsman only had the power to investigate and file the appropriate case before the Sandiganbayan.7 In the analogous case of Montemayor v. Bundalian,8 this Court ruled: Lastly, we cannot sustain petitioners stance that the dismissal of similar charges against him before the Ombudsman rendered the administrative case against him before the PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGCs investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar. (Emphasis supplied.) Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the Ombudsman, respondents objection on jurisdictional grounds cannot be sustained.

HON. WALDO Q. FLORES, in his capacity as Senior Deputy Executive Secretary in the Office of the President, HON. ARTHUR P. AUTEA, in his capacity as Deputy Executive Secretary in the Office of the President, and the PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC), Petitioners, vs. ATTY. ANTONIO F. MONTEMAYOR, Respondent. RESOLUTION VILLARAMA, JR., J.: This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the October 19, 2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004 of the Office of the President in O.P. Case No. 03-1-581, which found the respondent administratively liable for failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two expensive cars registered in his name, in violation of Section 7, Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The OP adopted the findings and recommendations of the Presidential Anti-Graft Commission (PAGC), including the imposition of the penalty of dismissal from service on respondent, with all accessory penalties. The motion is anchored on the following grounds: 1. Respondent was subjected to two (2) administrative/criminal Investigations equivalently resulting in violation of his constitutional right against "double jeopardy". 2. Who to follow between conflicting decisions of two (2) government agencies involving the same facts and issues affecting the rights of the Respondent. 3. Respondents constitutional right to due process was violated. 4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged offense committed/omitted.1 On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge involving non-declaration in his 2001 and 2002 SSAL was already the subject of investigation by the Ombudsman in OMB-C-C-04-0568-LSC, along with the criminal complaint for unexplained wealth, the former can no longer be pursued without violating the rule on double jeopardy. Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.2 We have held that none of these requisites applies where the Ombudsman only conducted a preliminary investigation of the same criminal offense against the respondent public

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations. Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on his own or upon complaint by any person when such act appears to be illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate disciplinary actions against erring public officials and employees. The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770: SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x x (Emphasis supplied.) Such jurisdiction over public officers and employees, however, is not exclusive. This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials.9 (Emphasis supplied.) Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority to investigate presidential and also non-presidential employees "who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned x x x."10 On this score, we do not agree with respondent that the PAGC should have deferred to the Ombudsman instead of proceeding with the administrative complaint in view of the pendency of his petition for certiorari with the CA challenging the PAGCs jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.11 It may be recalled that at the time respondent was directed to submit his counter-affidavit under the Ombudsmans Order dated March 19, 2004, the PAGC investigation had long commenced and in fact, the PAGC issued an order directing respondent to file his counter-affidavit/verified answer as early as May 19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction divests another of its own jurisdiction.12 Having already taken cognizance of the complaint against the respondent involving non-declaration in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents administrative case notwit hstanding the subsequent filing of a supplemental complaint before the Ombudsman charging him with the same violation. As to the third ground raised by respondent, we find no merit in his reiteration of the alleged gross violation of his right to due process. Records bear out that he was given several

opportunities to answer the charge against him and present evidence on his defense, which he stubbornly ignored despite repeated warnings that his failure to submit the required answer/counter-affidavit and position paper with supporting evidence shall be construed as waiver on his part of the right to do so. The essence of due process in administrative proceedings is the opportunity to explain ones side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.13 What is offensive to due process is the denial of the opportunity to be heard.14 This Court has repeatedly stressed that parties who choose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process.15Having persisted in his refusal to file his pleadings and evidence before the PAGC, respondent cannot validly claim that his right to due process was violated. In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the CAs finding that respondents right to due process was violated by the "unilateral investigation" conducted by the PAGC which did not furnish the respondent with a copy of the "prejudicial PAGC resolution." The dissent also agreed with the CAs observation that there was a "rush" on the part of the PAGC to find the respondent guilty of the charge. This was supposedly manifested in the issuance by the PAGC of its resolution even without taking into consideration any explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit to challenge the PAGCs jurisdiction to investigate him. On the other hand, the dissent proposed that the non-submission by respondent of his counter-affidavit or verified answer as directed by the PAGC should not be taken against him. Respondents ref usal was "not motivated by bad faith, considering his firm belief that PAGC did not have jurisdiction to administratively or disciplinarily investigate him." We do not share this view adopted by the dissent. Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No. 77285 dismissing respondents petition challenging the jurisdiction of the PAGC. Respondents motion for reconsideration was likewise denied by the CA. Upon elevation to this Court via a petition for review on certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First Divisions Resolution dated January 26, 2004, the petition was denied for failure of the petitioner (respondent) to show that the CA committed any reversible error in the assailed decision and resolution. Said resolution became final and executory on April 27, 2004. Thus, at the time respondent submitted his counter-affidavit before the Ombudsman on May 21, 2004, there was already a final resolution of his petition challenging the PAGCs investigative authority. On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding respondent guilty as charged and recommending that he be dismissed from the service, after the expiration of the 60-day temporary restraining order issued on June 23, 2003 by the CA in CAG.R. SP No. 77285. The OP rendered its Decision adopting the PAGCs findings and recommendation on March 23, 2004. As thus shown, a period of ten (10) months had elapsed from the time respondent was directed to file his counter-affidavit or verified answer to the administrative complaint filed against him, up to the rendition of the OPs decision. It cannot therefore be said that the PAGC and OP proceeded with undue haste in determining respondents administrative guilt. Still on respondents repeated claim that he was denied due process, it must be noted that when respondent received a copy of the OP Decision dated March 23, 2004, his petition for review filed in this Court assailing the CAs dismissal of CA-G.R. SP No. 77285 was already denied under Resolution dated January 26, 2004. However, despite the denial of his petition, respondent still refused to recognize PAGCs jurisdiction and continued to assail the same before the CA in CA G.R. SP No. 84254, a petition for review under Rule 43 from the OPs March 23, 2004 Decision

and May 13, 2004 Resolution.16 In any event, respondent was served with a copy of the OP Decision, was able to seek reconsideration of the said decision, and appeal the same to the CA. We also find nothing irregular in considering the investigation terminated and submitting the case for resolution based on available evidence upon failure of the respondent to file his counteraffidavit or answer despite giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The PAGC is also not required to furnish the respondent and complainant copy of its resolution. The dissent of Justice Bersamin assails the OPs complete reliance on the PAGCs findings and recommendation which "constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court of Industrial Relations17." Among others, it is required that "[T]he tribunal or any of its judges must act on its or his own independent consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision". Justice Bersamin thus concludes that the OP should have itself reviewed and appreciated the evidence presented and independently considered the facts and the law of the controversy." It was also pointed out that the OPs statement that the respondents arguments in his Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint were a mere reiteration of matters previously considered, was "a patent untruth." We disagree. The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted the same with a brief statement preceding the dispositive portion: After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.18 The relevant consideration is not the brevity of the above disquisition adopting fully the findings and recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a court but an administrative body determining the liability of respondent who was administratively charged, in the exercise of its disciplinary authority over presidential appointees. In Solid Homes, Inc. v. Laserna,19 this Court ruled that the rights of parties in an administrative proceedings are not violated by the brevity of the decision rendered by the OP incorporating the findings and conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the constitutional requirement of due process has been satisfied. Thus: It must be stated that Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings, as in the case a[t] bar. Said section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is titled "Judiciary," and all of its provisions have particular concern only with respect to the judicial branch of government. Certainly, it would be error to hold or even imply that decisions of executive departments or administrative agencies are oblige[d] to meet the requirements under Section 14, Article VIII. The rights of parties in administrative proceedings are not violated as long as the constitutional requirement of due process has been satisfied. In the landmark case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in administrative proceedings, as follows: 1) The right to a hearing, which includes the right to present ones case and submit evidence in support thereof.

2) The tribunal must consider the evidence presented. 3) The decision must have something to support itself. 4) The evidence must be substantial. 5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. 6) The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision. 7) The board or body should, in all controversial question, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. As can be seen above, among these rights are "the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;" and that the decision be rendered "in such a manner that the parties to the proceedings can know the various issues involved, and the reasons for the decisions rendered." Note that there is no requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is based. For as long as the administrative decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the factual and legal bases of the decision, the due process requirement is satisfied. At bar, the Office of the President apparently considered the Decision of HLURB as correct and sufficient, and said so in its own Decision. The brevity of the assailed Decision was not the product of willing concealment of its factual and legal bases. Such bases, the assailed Decision noted, were already contained in the HLURB decision, and the parties adversely affected need only refer to the HLURB Decision in order to be able to interpose an informed appeal or action for certiorari under Rule 65.1avvphi1 xxxx Accordingly, based on close scrutiny of the Decision of the Office of the President, this Court rules that the said Decision of the Office of the President fully complied with both administrative due process and Section 14, Article VIII of the 1987 Philippine Constitution. The Office of the President did not violate petitioners right to due process when it rendered its one-page Decision. In the case at bar, it is safe to conclude that all the parties, including petitioner, were well-informed as to how the Decision of the Office of the President was arrived at, as well as the facts, the laws and the issues involved therein because the Office of the President attached to and made an integral part of its Decision the Decision of the HLURB Board of Commissioners, which it adopted by reference. If it were otherwise, the petitioner would not have been able to lodge an appeal before the Court of Appeals and make a presentation of its arguments before said court without knowing the facts and the issues involved in its case.20 (Emphasis supplied.) Since respondent repeatedly refused to answer the administrative charge against him despite notice and warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by the OP, attaching the same to his motion for reconsideration. That the OP denied the motion by sustaining the PAGCs findings without any separate discussion of respondents

arguments and belatedly submitted evidence only meant that the OP found the same lacking in merit and insufficient to overturn its ruling on respondents administrati ve liability. On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the service is justified as no acceptable explanation was given for the non-declaration of the two expensive cars in his 2001 and 2002 SSAL. Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law "proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted agains t him." Respondents deliberate attempt to evade the mandatory disclosure of all assets acquired during the period covered was evident when he first claimed that the vehicles were lumped under the entry "Machineries/Equipment" or still mortgaged, and later averred that these were already sold by the end of the year covered and the proceeds already spent. Under this scheme, respondent would have acquired as many assets never to be declared at anytime. Such act erodes the function of requiring accuracy of entries in the SSAL which must be a true and detailed statement. It undermines the SSAL as "the means to achieve the policy of accountability of all public officers and employees in the government" through which "the public are able to monitor movement in the fortune of a public official; [as] a valid check and balance mechanism to verify undisclosed properties and wealth."21 IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH FINALITY. Let entry of judgment be made in due course. SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170512 October 5, 2011

That, I execute this affidavit to file charges against the guilty parties. 7 Attached to Aceros affidavit was the LTO Official Receipt No. 62927785, showing his payment of P180.00.8 The above affidavit was apparently filed with the Office of the Provincial Prosecutor in Camiguin, but the same was later referred9 to the Office of the Ombudsman-Mindanao. The latter office thereafter ordered10 Reyes and Pealoza to submit their counter-affidavits within ten days from notice. On June 19, 2001, Pealoza filed his Counter-Affidavit.11 He denied telling Acero that if the latter were willing to pay additional costs, Reyes and Pealoza would reconsider his application. Pealoza stated that he did administer the examination to Acero but since he was very busy, he requested their security guard, Dominador Daypuyat, to check the answers of Acero using their answer guide. After Daypuyat checked Aceros paper, Pealoza noted the score of 22/40. Pealoza informed Acero of the failing grade and told him that it was up to Reyes to decide on the matter. Acero then went to the office of Reyes and after a few minutes, he came back and returned his application documents to Pealoza. After examining the application form, Pealoza saw that the same did not contain Reyes signature but a plus sign (+) and the number 27 beside the score of 22/40. Pealoza knew that it was Reyes who wrote the "+ 27" and the same indicated that Acero had to pay additional costs in order to pass the examination, as was done in the past. Thereafter, when Pealoza allegedly informed Reyes that Acero was an auditor, the latter was summoned into Reyes office. Reyes asked if Acero wanted to retake the examination or just pay the additional costs. Acero eventually said "yes" and Pealoza inferred that the former agreed to pay Reyes the extra costs. Pealoza recounted that Reyes instructed him to prepare the drivers license of Acero. Pealoza gave Aceros application documents to Lourdes Cimacio, the senior statistician, who processed the drivers license. When the cashier asked for Aceros payment, the latter gave Pealoza a one-thousand-peso bill. The cashier, in turn, handed to Pealoza a change of P820.00. From the said amount, Pealoza gave to Acero P320.00, while P500.00 was given to Reyes. Acero soon left the office. Pealoza said that Acero called their office not long after, asking for a receipt for the P500.00. Pealoza then asked if Acero had not come to an understanding with Reyes that a receipt would not be issued for the additional cost. Acero insisted on a receipt then hanged up. Pealoza told Reyes of Aceros demand and Reyes told him to cancel the drivers license. When told that the same could not be done anymore, Reyes allegedly gave Pealoza P500.00, instructing the latter to return the money to Acero under circumstances where nobody could see them. Pealoza stated that he waited for Acero to come back to their office but the latter did not do so anymore. Pealoza also submitted in evidence the affidavit12 of Rey P. Amper. Amper narrated that he started working at the LTO in Mambajao, Camiguin in September 1988 as a driver-examiner. In February 1994, Reyes became the acting Head of Office, and eventually the Head of Office, of the LTO in Mambajao. About four months thereafter, Reyes verbally instructed Amper to send to him (Reyes) all the applicants for drivers licenses who failed the examinations. In case Reyes was absent, the applicants were to wait for him. Subsequently, Reyes gave Amper a piece of paper containing the rates to be charged to the "applicant-flunkers" in addition to the legal fees. Amper was also told to deliver the additional payments to Reyes. Amper stated that his office table and that of Reyes were located in one room. Reyes would allegedly tell the applicantflunkers to either re-take the examinations or pay additional costs. In most cases, Amper said that the applicant-flunkers would only be too willing to pay the extra costs. Reyes would then instruct Amper to add more points to applicant-flunkers scores, which meant that Reyes and the applicants concerned had come to an agreement for the payment of additional costs. Amper added that the said practice of Reyes was a "goad to his conscience" and he talked about it to Pealoza. They allegedly reported the matter to their District Representative Pedro Romualdo, but the latter could only express his regrets for having recommended Reyes to his position. The practice of Reyes of claiming additional costs continued up to the time Amper left the LTO.

OFFICE OF THE OMBUDSMAN, Petitioner, vs. ANTONIO T. REYES, Respondent. DECISION LEONARDO DE CASTRO, J.: This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court seeks the reversal of the Decision2dated July 4, 2005 and the Resolution3 dated October 27, 2005 of the Court of Appeals in CA-G.R. SP No. 70571. The judgment of the appellate court reversed and set aside the Decision4 dated September 24, 2001 and the Joint Order5 dated February 15, 2002 of the Office of the Ombudsman for Mindanao in OMB-MIN-ADM-01-170; while the appellate courts resolution denied the motion for reconsideration6 assailing its decision. On January 11, 2001, Jaime B. Acero executed an affidavit against herein respondent Antonio Reyes and Angelito Pealoza, who were the Transportation Regulation Officer II/Acting Officerin-Charge and Clerk III, respectively, of the Land Transportation Office (LTO) District Office in Mambajao, Camiguin. Acero narrated thus: That, on January 10, 2001, at about 2:00 oclock P.M. I went to the Land Transportation Office, at Mambajao, Camiguin to apply for a drivers license; That, I was made to take an examination for drivers license applicants by a certain Tata Pealoza whose real name is Angelito, a clerk in said office; That, after the examination, [Pealoza] informed me that I failed in the examination; however if I am willing to pay additional assessment then they will reconsider my application and I am referring to [Pealoza] and [Reyes]; That, I asked how much will that be and [Pealoza] in the presence of [Reyes] answered P680.00, so I agreed; That, I then handed P1,000.00 to [Pealoza] and [Pealoza] handed it to the cashier; That, [Pealoza] in turn handed to me the change of P320.00 only and a little later I was given the LTO Official Receipt No. 62927785 (January 10, 2001) but only for P180.00 which O.R. serves as my temporary license for 60 days; and the balance of P500.00 was without O.R. and retained by Pealoza; That, I feel that the actuation of Antonio Reyes and Angelito Pealoza are fraudulent in that they failed to issue receipt for the extra P500.00 paid to them; and [Reyes] know that I am with [the Commission on Audit];

Amper declared that he knew that it was Reyes alone who took and benefitted from his illegal exactions. The employees of the LTO in Mambajao were purportedly aware of the practice of Reyes but they were afraid to come out against their Head of Office. The affidavit13 of Margie B. Abdala was also presented by Pealoza. Abdala stated that she accompanied Pealoza and the latters wife, Ebony, to the house of Acero on January 13, 2001. Ebony urged Acero not to include Pealoza anymore in the complaint. Acero assured them that his complaint was principally directed against Reyes for requiring him (Acero) to pay additional costs for which he was not issued any official receipt. Pealoza brought with him Aceros application form for a drivers license, which had already been approved by Reyes, and he asked the latter to complete the same. Pealoza also tried to return the P500.00 from Reyes that was not covered by a receipt. Acero, however, refused to fill up the application form and to accept the money. When Ebony asked why Acero agreed to pay the additional cost required by Reyes, the latter answered that he did not understand what was meant by additional cost. On June 19, 2001, Reyes manifested14 that, for purposes of the instant case, he was adopting the counter-affidavit he filed in another Ombudsman case, docketed as OMB-MIN-01-0090,15 as both cases involved the same parties and the same incident. In his counter-affidavit,16 Reyes claimed that Aceros complaint was a "blatant distortion of the truth and a mere fabrication of the complainant."17 Reyes asserted that a perusal of the affidavitcomplaint revealed that the only imputation against him was that Pealoza allegedly told Acero to pay P680.00 in his (Reyes) presence. The affidavit revealed that it was Pealoza who processed the application of Acero; the money was allegedly given to Pealoza and it was he who handed the change back to Acero; and he had no participation and was not present when the money changed hands. Reyes stated that when he conducted an informal investigation on the complaint, Pealoza admitted to having pocketed the extra P500.00. Reyes allegedly reprimanded Pealoza and ordered the latter to return the money to Acero. Based on the receipt submitted by Acero, the same proved that as far as the LTO and Reyes were concerned, what was received by the office was only P180.00. Reyes contended that he did not ask or receive money from Acero and it was Pealoza who pocketed the P500.00. In an Order18 dated June 20, 2001, the Office of the Ombudsman-Mindanao directed the parties to appear before its office on July 11, 2001 for a preliminary conference. The parties were to consider, among others, the need for a formal investigation or whether the parties were willing to submit their case for resolution on the basis of the evidence on record and such other evidence as they will present at the conference. On July 6, 2001, Acero sent the Office of the Ombudsman-Mindanao a telegram,19 stating that he was waiving his right to avail of the preliminary conference. On July 11, 2001, the Office of the Ombudsman-Mindanao issued an Order,20 stating that none of the parties appeared in the preliminary conference scheduled for that day. In view of the nonappearance of the respondents therein, they were considered to have waived their right to a preliminary conference. The case was then deemed submitted for decision. On July 23, 2001, the counsel for Pealoza informed the Office of the Ombudsman-Mindanao that his client was waiving his right to a formal investigation and was willing to submit the case for resolution on the basis of the evidence on record. Pealoza also submitted the additional affidavit of one of their witnesses, Rickie Valdehueza. In his affidavit,21 Valdehueza stated that on January 5, 2001, he applied for a drivers license with the LTO in Mambajao, Camiguin. He took an examination on that day, which was conducted by an employee he later came to know as Dominador Daypuyat. After the latter checked his test paper, Valdehueza was told that he got a failing score. His application was then turned over to

Pealoza, who told him to see Reyes. Valdehueza said that Reyes advised him not to retake the examination anymore and just pay P1,500.00. Valdehueza bargained for P1,200.00 since he had no money and Reyes agreed. Reyes then wrote the sign "+ 20" next to Valduezas score of 30, such that what appeared on the test paper was "30 + 20." Reyes returned the test paper and instructed Valdehueza to tell Pealoza to add "20" to his score. Valdehueza went back to the LTO on January 10, 2001 bringing P1,200.00. Before he could go to Reyes office, he was accosted by Daypuyat in the lobby who informed him that his license was already completed. Daypuyat also took P700.00 to give to Reyes. Valdehueza gave P500.00 to the cashier as payment for the P240.00 license fee. He told the cashier to just give his change to Reyes. On September 24, 2001, the Office of the Ombudsman-Mindanao rendered a Decision in OMBMIN-ADM-01-170, adjudging Reyes guilty of grave misconduct and finding Pealoza guilty of simple misconduct. The pertinent portion of the decision reads: Here, as borne out of the record, there is no denying the fact that [Acero] failed in the examination given for a drivers license, yet ultimately, herein complainant was granted a temporary drivers license. It is therefore very logical to presume that something in between was agreed upon between the applicant and the person charged with the grant of license. Based on the testimony of [Pealoza] and corroborated by the testimonies of Rey P. Amper (Record, pp. 31-32) and Rickie Valdehueza (Record, pp. 44-45), [Reyes] would give the flunker the option of retaking the examination or to simply pay an additional cost to have a passing grade without actually re-taking the same. As testified to by Rey P. Amper, "xxx in almost all cases, the applicant-flunker would only be too willing to pay the additional costs, in which case, Mr. Reyes would instruct him to go back to my table. Then Mr. Reyes would call me, saying: Ray, just add more to his score., which to me meant that he and the applicant-flunker had come to an agreement to pay the additional costs." Mr. Amper testifies further that this matter of extending a passing grade to a flunker for a monetary consideration has been a system within this LTO agency perpetrated by [Reyes] since he assumed as Head of Office thereat. Verily, [Reyes] took advantage of his position and office in exacting the so-called additional cost from those who flunked the examination. There is nowhere in the record authorizing the Head of Office of the LTO to adjust a failing grade into a passing grade. In addition, there is nowhere in the record that supports the legality of collecting additional costs over and above the legal fees. This is a pure and simple case of extortion and certainly, such act is a breach of his oath of office as well as a deliberate disregard of existing rules and regulations. Based on the foregoing, this Office finds respondent [Reyes] guilty of grave misconduct. As regards [Pealoza], while he may have helped or facilitated in the collection of that additional costs, he could not be as guilty as [Reyes]. Understandably, it is normal for a subordinate to keep mum while an anomaly is going on specially when the perpetrator is the Head of Office. There is fear in him and normally, such subordinate would just "ride along", so to speak. But nonetheless, [Pealoza] has to be sanctioned. While the infraction he had helped accomplished may not have been voluntary on his part but as a public official, he should have registered his objection regardless of the consequence that may occur. Based on the foregoing, this Office finds respondent [Pealoza] guilty of simple misconduct. WHEREFORE, there being substantial evidence, this Office finds respondent Antonio T. Reyes guilty of grave misconduct and he is hereby meted the penalty of DISMISSAL from the service pursuant to Section 23(c) [Grave Offenses], Rule XIV of the Rules Implementing Book V of Executive Order No. 292. Likewise, this Office finds respondent Angelito G. Pealoza guilty of Simple Misconduct and he is hereby meted the penalty of SUSPENSION from office without pay for a period of Six (6) months based on Section 23(b) [Less Grave Offenses] Rule XIV of the Rules Implementing Book V of Executive Order No. 292. In both instances, the execution of the

penalties imposed shall be made immediately after the same shall have been final and executory.22 In their bid to challenge the above ruling, Reyes filed a Motion for Reconsideration cum Motion to Set the Case for Preliminary Conference,23 while Pealoza filed a Motion for Reconsideration.24 On February 15, 2002, the Office of the Ombudsman-Mindanao issued a Joint Order,25 denying the aforesaid motions of Reyes and Pealoza. Reyes elevated the case to the Court of Appeals via a Petition for Review26 under Rule 43 of the Rules of Court, which petition was docketed as CA-G.R. SP No. 70571. In the assailed Decision dated July 4, 2005, the Court of Appeals granted the petition of Reyes and reversed the judgment of the Office of the Ombudsman-Mindanao. The appellate court reasoned thus: It must be pointed out that in the complaint-affidavit filed by Acero, it was only Pealoza who received the money and the balance of P 500.00 which was without O.R. was retained by Pealoza. Nowhere in the complaint-affidavit could one find the name of Reyes, herein petitioner, nor is it alleged there that Reyes was around when Acero handed to Pealoza the P 1000.00. From the evidence on record, it was, clearly, only Pealoza all along. Nowhere in the record is Reyes complicity suggested or even slightly hinted. xxxx It does not appear on record that [Reyes] was the one who ordered and received the "additional assessment". Rather, it was Pealoza alone who approached the complainant, discussed about the "additional assessment", and retained the balance of P 500 basing on the complaint-affidavit filed by Acero. We note with sadness that the counter-affidavit of Pealoza, of itself, was considered enough evidence by the investigation officer in finding [Reyes] guilty of grave misconduct, and dismissing him from government service. The testimony of Pealoza is, however, a self-serving declaration considering that he is the co-respondent in the Ombudsman case filed by Acero. Such a declaration which was obviously made principally to save his own neck should have been received with caution. This vital objection to the admission of this kind of evidence is its hearsay character and to permit its unqualified introduction in evidence would open the door to frauds and perjuries. It may be true that Reyes failed to attend the scheduled preliminary conference where he could have refuted all the hearsay evidence submitted against him. The introduction of such as evidence does not, however, give them the probative value which they did not bear in the first place. Hearsay evidence, whether objected to or not, cannot be given credence. The self-serving evidence presented in the form of a counter-affidavit by Pealoza should not have been taken hook, line and sinker, so to speak, for there was no way of ascertaining the truth of their contents. Moreover, in the Motion for Reconsideration dated November 13, 2001 [Reyes] claimed that he was not furnished any copy of Pealozas counter-affidavit. Thus, admissions made by Pealoza in his sworn statement are binding only on him.Res inter alios acta alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or omission of another. The charge of misconduct is a serious charge, a "capital offense" in a manner of speaking, which may cause the forfeiture of ones right to hold a public office. Therefore, said charge must be proven and substantiated by clear and convincing evidence. Mere allegation will not suffice. It

should be supported by competent evidence, by substantial evidence. We find the case against [Reyes] wanting in this regard. FOR THESE REASONS, the instant petition is GRANTED. The decision dated 24 September 2001 and the Joint Order dated 15 February 2002 are REVERSED and SET ASIDE. [Reyes] is hereby exonerated from the administrative charge for insufficiency of evidence.27 The Office of the Ombudsman, through the Office of the Solicitor General, filed a Motion for Reconsideration28 of the Court of Appeals decision. The same was, however, denied in the assailed Resolution dated October 27, 2005. Hence, the Office of the Ombudsman (petitioner) filed the instant petition, raising the following issues: WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS, IN NULLIFYING THE D E C I S I O N OF THE OMBUDSMAN, DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW AND APPLICABLE JURISPRUDENCE IN THAT: (i) It re-examined and weighed the evidence submitted in the administrative proceedings and worse, substituted its judgment for that of the Ombudsman; and, (ii) It made a conclusion that substantial evidence does not exist to warrant a finding of administrative culpability on the part of respondent Reyes.29 In essence, the fundamental issue in the instant case is whether the charge of grave misconduct against Reyes was sufficiently proven by substantial evidence. Petitioner settled this issue in the affirmative, while the Court of Appeals ruled otherwise. In Salazar v. Barriga,30 the Court characterized the administrative offenses of misconduct and grave misconduct as follows: Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior. To constitute an administrative offense, misconduct should relate to or be connected with the performance of official functions and duties of a public officer. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule must be manifest. Corruption as an element of grave misconduct consists in the act of an official who unlawfully or wrongfully uses his station or character to procure some benefit for himself, contrary to the rights of others.31 Here, petitioner adjudged Reyes guilty of grave misconduct after finding that Reyes, being then the Head of Office of the LTO in Mambajao, Camiguin, illegally exacted money from Acero in exchange for the issuance of a drivers license to the latter, notwithstanding that Acero did not pass the requisite written examination therefor. In assailing the judgment of the Court of Appeals, petitioner avers that the findings of fact of the Office of the Ombudsman are entitled to great weight and must be accorded full respect and credit as long as they are supported by substantial evidence. Petitioner argues that it is not the task of the appellate court to weigh once more the evidence submitted before an administrative body and to substitute its own judgment for that of the administrative agency with respect to the sufficiency of evidence.

Indeed, Section 27 of Republic Act No. 6770 mandates that the findings of fact by the Office of the Ombudsman are conclusive when supported by substantial evidence. 32 In administrative and quasi-judicial proceedings, only substantial evidence is necessary to establish the case for or against a party. Substantial evidence is more than a mere scintilla of evidence. It is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. 33 Dadulo v. Court of Appeals34 reiterates that in reviewing administrative decisions, it is beyond the province of this Court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. However, while it is not the function of the Court to analyze and weigh the parties' evidence all over again, an exception thereto lies as when there is serious ground to believe that a possible miscarriage of justice would thereby result. After carefully perusing the records of this case, we find that the above-cited exception, rather than the general rule, applies herein. Otherwise stated, the Court deems it proper that a review of the case should be made in order to arrive at a just resolution. In the main, the evidence submitted by the parties in OMB-MIN-ADM-01-170 consisted of their sworn statements, as well as that of their witnesses. In the affidavit of Acero, he categorically identified both Reyes and Pealoza as the persons who had the prerogative to reconsider his failed examination, provided that he paid an additional amount on top of the legal fees. For his part, Pealoza ostensibly admitted the charge of Acero in his counter-affidavit but he incriminated Reyes therein as the mastermind of the illicit activity complained of. To corroborate this allegation, Pealoza submitted the affidavits of Amper and Valdehueza. Amper was a former LTO employee who allegedly had first-hand knowledge of the practice of Reyes of imposing and pocketing additional fees; while Valdehueza declared that he was an applicant for a drivers license who was likewise made to pay the said additional fees to Reyes. Upon the other hand, Reyes counter-affidavit repudiated the allegations of Acero, insisting that it was Pealoza who illegally took the amount of P500.00 from Acero. Reyes faults petitioner for placing too much reliance on the counter-affidavit of Pealoza, as well as the affidavits of Amper and Valdehueza. Reyes claims that he was not furnished a copy of the said documents before petitioner rendered its Decision dated September 24, 2001. Reyes, thus, argues that his right to due process was violated. Petitioner, on the other hand, counters that Reyes was afforded due process since he was given all the opportunities to be heard, as well as the opportunity to file a motion for reconsideration of petitioners adverse decision. On this point, the Court finds merit in Reyes contention. Ledesma v. Court of Appeals35 elaborates on the well established doctrine of due process in administrative proceedings as follows: Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. The essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain ones side, or an opportunity to seek a reconsideration of the action or ruling complained of. 36 Moreover, Department of Health v. Camposano37 restates the guidelines laid down in Ang Tibay v. Court of Industrial Relations38 that due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents right to a hearing, which includes the right to present ones case and submit supporting evidence, must be observed; (2)

the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.39 In the present case, the fifth requirement stated above was not complied with.1avvphi1 Reyes was not properly apprised of the evidence offered against him, which were eventually made the bases of petitioners decision that found him guilty of grave misconduct. To recall, after the affidavit of Acero was filed with the Office of the Ombudsman-Mindanao, the respondents therein, i.e., Reyes and Pealoza, were ordered to submit their counter-affidavits in order to discuss the charges lodged against them. While Pealoza acknowledged in his counteraffidavit his participation in the illicit transaction complained of, he pointed to Reyes as the main culprit. Pealoza thereafter submitted the affidavits of Amper and Valdehueza as witnesses who would substantiate his accusations. However, the records reveal that only the Office of the Ombudsman-Mindanao and Acero were furnished copies of the said affidavits. 40 Thus, Reyes was able to respond only to the affidavit of Acero. It would appear that Reyes had no idea that Pealoza, a co-respondent in the administrative case, would point an accusing finger at him and even supply the inculpatory evidence to prove his guilt. The said affidavits were made known to Reyes only after the rendition of the petitioners Decision dated September 24, 2001. The fact that Reyes was able to assail the adverse decision of the petitioner via a Motion for Reconsideration Cum Motion to Set the Case for Preliminary Conference did not cure the violation of his right to due process in this case. Reyes filed the said motion precisely to raise the issue of the violation of his right to due process. There is nothing on record to show that Reyes was furnished with, or had otherwise received, a copy of the affidavits of Pealoza, Amper and Valdehueza, whether before or after the Decision dated September 24, 2001 was issued. Thus, it cannot be said that Reyes had a fair opportunity to squarely and intelligently answer the accusations therein or to offer any rebuttal evidence thereto. It is true that, in the past, this Court has held that the right to due process of a respondent in an administrative case was not violated if he was able to file a motion for reconsideration to refute the evidence against him. However, the instant case should be differentiated from Ruivivar v. Office of the Ombudsman,41 which likewise involved the issue of administrative due process. In the said case, Ruivivar was found administratively liable for discourtesy in the course of her official functions and was meted the penalty of reprimand. In her motion for reconsideration, Ruivivar argued that she was deprived of due process because she was not furnished copies of the affidavits of complainants witnesses. Thereafter, the Ombudsman ordered that Ruivivar be furnished with copies of the affidavits of the witnesses, with the directive for her to file any pleading that she may deem appropriate. As Ruivivar still opted not to controvert the affidavits that were belatedly provided to her, the Ombudsman ruled that her right to due process was not violated and her administrative liability was upheld. The Court affirmed the ruling of the Ombudsman, declaring that "the law can no longer help one who had been who had been given ample opportunity to be heard but who did not take full advantage of the proffered chance." 42 In the instant case, petitioner plainly disregarded Reyes protestations without giving him a similar opportunity, as in Ruivivar, to be belatedly furnished copies of the affidavits of Pealoza, Amper and Valdehueza to enable him to refute the same. As it were, petitioner rendered its Decision dated September 24, 2001 on the basis of evidence that were not disclosed to Reyes. This the Court cannot sanction. A judgment in an administrative case that imposes the extreme penalty of dismissal must not only be based on substantial evidence but also rendered with due regard to the rights of the parties to due process.

WHEREFORE, the Decision dated July 4, 2005 and the Resolution dated October 27, 2005 of the Court of Appeals in CA-G.R. SP No. 70571, as well as the Decision dated September 24, 2001 and the Joint Order dated February 15, 2002 of the Office of the Ombudsman in OMB-MINADM-01-170, are hereby REVERSED and SET ASIDE. The records of OMB-MIN-ADM-01-170 are REMANDED to the Office of the Ombudsman, which is hereby ordered (a) to furnish respondent Antonio T. Reyes copies of the affidavits of Angelito G. Pealoza, Rey P. Amper and Rickie Valdehueza, and (b) to conduct further proceedings in OMB-MIN-ADM-01-170 as may be appropriate. No pronouncement as to costs. SO ORDERED. TERESITA J. LEONARDO-DE CASTRO Associate Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 159781 February 2, 2011

The petition is denied due course. That Atty. Besario was negligent in handling the petitioners case was clear. Indeed, his abject failure to file the petition for review in the CA despite his two motions for extension for that purpose warranted no other conclusion but that he was negligent. Nonetheless, we find no justification to reverse the CAs disposition of the appeal. The petitioner was bound by Atty. Besarios negligence. The general rule is that a client is bound by the counsels acts, including even mistakes in the realm of procedural technique.2 The rationale for the rule is that a counsel, once retained, holds the implied authority to do all acts necessary or, at least, incidental to the prosecution and management of the suit in behalf of his client, such that any act or omission by counsel within the scope of the authority is regarded, in the eyes of the law, as the act or omission of the client himself.3 A recognized exception to the rule is when the reckless or gross negligence of the counsel deprives the client of due process of law. For the exception to apply, however, the gross negligence should not be accompanied by the clients own negligence or malice, considering that the client has the duty to be vigilant in respect of his interests by keeping himself up-to-date on the status of the case. Failing in this duty, the client should suffer whatever adverse judgment is rendered against him. Truly, a litigant bears the responsibility to monitor the status of his case, for no prudent party leaves the fate of his case entirely in the hands of his lawyer. It is the clients duty to be in contact with his lawyer from time to time in order to be informed of the progress and developments of his case;4 hence, to merely rely on the bare reassurances of his lawyer that everything is being taken care of is not enough.1avvphi1 Here, the petitioner took nearly 16 months from the issuance of the entry of judgment by the CA, and almost 22 months from when the RTC affirmed the convictions before he actually filed his petition for review in the CA. He ought to have been sooner alerted about his dire situation by the fact that an unreasonably long time had lapsed since the RTC had handed down its dismissal of his appeal without Atty. Besario having updated him on the developments, including showing to him a copy of the expected petition for review. Also, he could have himself verified at the CA whether or not the petition for review had been filed, especially upon realizing that Atty. Besario had started making himself scarce to him. In short, the petitioners failure to know or to find out the real status of his appeal rendered him undeserving of any sympathy from the Court vis--vis the negligence of his former counsel. The right to appeal is not a natural right or a part of due process, but is merely a statutory privilege that may be exercised only in the manner prescribed by the law. 5 The right is unavoidably forfeited by the litigant who does not comply with the manner thus prescribed. So it is with the petitioner. WHEREFORE, the Court affirms the resolution promulgated on August 14, 2003 in C.A. G.R. CR No. UDK-181 for failure of the petitioner to show a reversible error committed by the Court of Appeals. SO ORDERED. LUCAS P. BERSAMIN Associate Justice

PETER BEJARASCO, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: This case concerns the dire consequences of a litigants failure to periodically follow up with his counsel on the developments of his appeal. The petitioner was convicted on February 16, 2001, for grave threats and grave oral defamation in the Municipal Trial Court (MTC) in Sibonga, Cebu. On July 31, 2001, the Regional Trial Court (RTC), Branch 26, in Argao, Cebu affirmed the convictions. In due course, the petitioner, then represented by the Public Attorneys Office (PAO), sought the reconsideration of the RTC decision, claiming that he had not filed his appeal memorandum because of the MTCs failure to give him free copies of the transcripts of stenographic notes. He argued that the RTCs decision should be set aside and the criminal cases against him should be dismissed due to the prematurity and the serious errors of facts and law. However, the RTC denied the petitioners motion for reconsideration on September 24, 2001. On October 12, 2001, the petitioner, this time represented by Atty. Luzmindo B. Besario (Atty. Besario), a private practitioner, filed in the Court of Appeals (CA) a motion for extension of time to file his petition for review (C.A.-G.R. CR No. UDK-181). The CA granted his motion. Instead of filing his petition for review within the period granted, however, Atty. Besario sought another extension, but still failed in the end to file the petition for review. Thus, on March 13, 2002, the CA dismissed his appeal. After the dismissal became final and executory, entry of judgment was made on April 4, 2002. Thereafter, on March 31, 2003, the MTC issued a warrant of arrest against the petitioner, who surrendered himself on May 22, 2003. On July 16, 2003, the petitioner filed in the CA his petition for review through another attorney, alleging that Atty. Besario had recklessly abandoned him and had disappeared without leaving a trace. In its resolution dated August 14, 2003, the CA denied admission to the petition for review and ordered it expunged from the records; and reiterated its March 13, 2002 resolution of dismissal. 1 Aggrieved, the petitioner is now before the Court to plead his cause. He submits that Atty. Besarios reckless abandonment of his case effectively deprived him of his day in court and of his right to due process; and that said former counsels actuation constituted reckless and gross negligence that should not be binding against him.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 191366 December 13, 2010

As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were surprised by the presence of the police. In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum foil. The accused were arrested and brought to the police precinct. The items found in the room were seized and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine hydrochloride. Version of the Defense The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by. While they were talking, Doria arrived. It was then that five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu. The Ruling of the RTC

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y CUNANAN, Accused-Appellants. DECISION MENDOZA, J.: This is an appeal from the August 7, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008 Decision2 of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. The Facts The Information indicting the accused reads:

The case against Doria was dismissed on a demurrer to evidence. That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) person[s]. Contrary to Section 13, Article II, R.A. 9165.3 Version of the Prosecution As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 oclock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales was located. On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of suit. The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the law. SO ORDERED.4 The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused. The accused were held to have been in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to possess the dangerous drug. The Ruling of the CA

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of the dangerous drugs by the accused. It further held that although the procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded. The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by the accused. Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject decision, presenting the following Assignment of Errors For accused Arnold Martinez, Edgar Dizon and Rezin Martinez 1. The lower court erred in finding the accused-appellants to be having a pot session at the time of their arrest; 2. The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia to justify the arrest of the accused-appellants without warrant; 3. The lower court erred in not finding that the corpus delicti has not been sufficiently established; 4. The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to convict the accused-appellants of the crime charged; 5. The lower court erred in not acquitting the accused-appellants. For accused Rafael Gonzales I THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG. After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly established. Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before arraignment.5 However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.6 Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a just decision,7especially when the transcendental matter of life and liberty is at stake.8 While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights.9 Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accuseds right to be protected against unreasonable searches and seizures cannot be ignored. The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its citizens as well as into their houses, papers and effects.10 Sec. 2, Art. III, of the 1987 Constitution provides: Section 2. - The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without warrant. Arrests and seizures in the following instances are allowed even in the absence of a warrant (i) warrantless search incidental to a lawful arrest;11 (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk; and (vii) exigent and emergency circumstances. 12 This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search, both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint Affidavit13 with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on in said house, to wit: Q: I go back to the information referred to you by the informant, did he not tell you how many persons were actually conducting the pot session? A: Yes, sir.

Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see what is happening inside the house of Rafael Gonzales? A: Yes, sir. Q: You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table while you were outside the premises of the property of Rafael Gonzales? xxx Q: Before they entered the premises they could not see the paraphernalia? COURT: Answer.

Q: When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant, correct? A: None, sir. Q: Before the information was given to you by your alleged informant, you did not know personally Rafael Gonzales? A: I have not met [him] yet but I heard his name, sir. Q: When this informant told you that he was told that there was [an] ongoing pot session in the house of Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the house of Rafael Gonzales? A: I think it was no longer recorded, sir. Q: In other words, you did not even bother to get the personal data or identity of the person who told you that he was allegedly informed that there was an ongoing pot session in the house of Rafael Gonzales? A: What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified because he was afraid, sir. Q: And likewise, he did not inform you who told him that there was an ongoing pot session in the house of Rafael Gonzales? A: No more, sir. Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales? A: Yes, sir. xxx

A: Of course because they were inside the room, how could we see them, sir. Q: But still you entered the premises, only because a certain person who told you that he was informed by another person that there was an ongoing pot session going on inside the house of Rafael Gonzales? A: Yes, sir. Q: And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested the persons you saw? A: Yes, sir.14 Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person accused is guilty of the offense with which he is charged.15 Although this Court has ruled in several dangerous drugs cases 16 that tipped information is sufficient probable cause to effect a warrantless search,17 such rulings cannot be applied in the case at bench because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an informers tip. The case of People v. Bolasa18 is informative on this matter. In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the house accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled: The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were

committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment. Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accusedappellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. 19 It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 20 As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the information that was reported to the police: Q: Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by an informant? A: Yes, sir. Q: What exactly [did] that informant tell you? A: He told us that somebody told him that there was an ongoing pot session in the house of one of the accused Rafael Gonzales, sir. Q: You mean to say that it was not the informant himself to whom the information originated but from somebody else? A: That was what he told me, sir.

Q: Because of that you proceeded to where the alleged pot session was going on? [No Answer] Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on? A: No more because he did not go with us, sir. Q: So you merely relied on what he said that something or a pot session was going on somewhere in Arellano but you dont know the exact place where the pot session was going on? A: Yes, sir. Q: And your informant has no personal knowledge as to the veracity of the alleged pot session because he claimed that he derived that information from somebody else? A: This is what he told us that somebody told him that there was an ongoing pot session, sir. Q: Despite of [sic] that information you proceeded to where? A: Trinidad Subdivision, sir. xxx Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session? A: No, sir. Q: That was, because your informant dont [sic] know physically what was really happening there? A: He was told by another person that there was an ongoing pot session there, sir.21 [Emphasis supplied] Neither can it be said that the subject items were seized in plain view. The elements of plainview are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search. 22 The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down. Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that the identity and address of one of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.23 The subject items seized during the illegal arrest are thus inadmissible. The drug, being the verycorpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused. As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal searches and seizures in cases where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by which they were obtained. This attitude tramples on constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the breakdown of our system of justice and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. 24 Chain of Custody Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases. The accused contend that the identity of the seized drug was not established with moral certainty as the chain of custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement Agency(PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time of confiscation up to the time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as to their guilt. Thus, they assert that the presumption of innocence in their favor was not overcome by the presumption of regularity in the performance of official duty. The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and consciously possessed the dangerous drug. 25 Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons. The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custodymust be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.26 Malillin v. People was the first in a growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is

what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.27 Section 1(b) of DDB Regulation No. 1, Series of 2002,28 defines chain of custody as follows: b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition; Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and integrity of dangerous drugs seized, to wit: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in dangerous drugs cases in order to ensure their identity and integrity, as follows: Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory. If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officers seal has been broken. At the trial, the technician can

then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity. If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly ones possession has been. Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care. 29 Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides for, the possibility of non-compliance with the prescribed procedure: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied] Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the chain of custody. According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to wit: a) Several pcs of used empty plastic sachets containing suspected shabu residues. b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored green & one (1) pc colored white ). c) Several pcs of used rolled aluminum foil containing suspected shabu residues. d) Several pcs of used cut aluminum foil containing suspected shabu residues. e) One (1) pc glass tube containing suspected shabu residues.30 [Emphases supplied] At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.31 A letter-request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items:

a) Pieces of used empty small plastic sachets with suspected shabu residues marked "DC&A-1." b) Pieces of used rolled and cut aluminum foil with suspected shabu residues marked "DC&A-2." c) Pieces of used cut aluminum foil with suspected shabu residues marked "DC&A3."32 [Emphases supplied] The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit: SPECIMENS SUBMITTED: A A1 to A115 One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected shabu residue without markings. B B1 to B11 Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residuewithout markings. C C1 to C49 Forty-nine (49) used aluminum foil with tag each containing suspected shabu residuewithout markings.33 [Emphases supplied] Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which reads: DCPS AID SOTG 05 September 2006 CONFISCATION RECEIPT TO WHOM IT MAY CONCERN: THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city. Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the

incident andthe sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination. Seizing Officer: (sgd.) PO1 Bernard B Azardon Affiant Remarks: (sgd.) PO1 Alejandro Dela Cruz Affiant

Q: Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales? A: It was so suddenly, [sic] sir. Q: And that explains the reason why you were not able to have pictures taken, is that correct? A: Yes, sir.37 [Emphasis supplied]

Refused to Signed Refused to Signed Refused to Signed Refused to Signed Refused to Signed34 [Emphases supplied] The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked as Exhibits "H" and series, "I" and series, and "J" and series, respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.35 The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letter-request for laboratory examination. A review of the chain of custody indicates, however, that the CA is mistaken. First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and confiscation of the subject items, no physical inventory was conducted in the presence of the accused, or their representative or counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required by law. PO1 Azardon, in his testimony,36admitted that no photographs were taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the situation happened so suddenly. Thus: Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales? A: Yes, sir. Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the subject items were at all marked. It was only in the letter-request for laboratory examination that the subject items were indicated to have been marked with "DC&A-1," "DC&AThis Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases arePeople v. Garcia,39 People v. Dela Cruz,40 People v. Dela Cruz,41 People v. Santos, Jr.,42 People v. Nazareno,43People v. Orteza,44 Zarraga v. People,45 and People v. Kimura.46 Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the requirement of marking, to wit: What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft. For greater specificity, "marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.47 [Emphasis in the original] The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached the police station, as the suspects had already been arrested and the items seized. Moreover, it has been held that in case of warrantless seizures nothing prevents the apprehending officer from immediately conducting the physical inventory and photography of the items at their place of seizure, as it is more in keeping with the laws intent to preserve their integrity and evidentiary value.38

2" and "DC&A-3." There is no showing, however, as to who made those markings and when they were made. Moreover, those purported markings were never mentioned when the subject items were identified by the prosecution witnesses when they took the stand. The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in each group. Furthermore, it was only in the Chemistry Report48 that the precise number of each type of item was indicated and enumerated. The Court notes that in all documents prior to said report, the subject items were never accurately quantified but only described as "pieces,"49 "several pcs,"50 and "shabu paraphernallas."51 Strangely, the Chemistry Report indicates that all the subject items had "no markings," although each item was reported to have been marked by P/Insp. Maranion in the course of processing the subject items during laboratory examination and testing.52 Doubt, therefore, arises as to the identity of the subject items. It cannot be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the laboratory examination and presented in court. This Court has acquitted the accused for the failure and irregularity in the marking of seized items in dangerous drugs cases, such as Zarraga v. People,53 People v. Kimura,54 and People v. Laxa.55 Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three days after. More important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the accused and the general description of the subject items as "the sachet of suspected Shabu paraphernallas were brought to the PNP Crime Laboratory." The receipt is made even more dubious by PO1 Azardons admission in his testimony56 that he did not personally prepare the Confiscation Receipt and he did not know exactly who did so. Fourth, according to the Certification57 issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3 Esteban. Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject items were kept after they were tested prior to their presentation in court. This Court has highlighted similar shortcomings in People v. Cervantes,58 People v. Garcia,59 People v. Sanchez,60 and Malillin v. People.61 More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 Azardons testimony62that they were tipped off by a concerned citizen while at the police station, the Letter63 to the Executive Director of the DDB states that the apprehending officers were tipped off "while conducting monitoring/surveillance." Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information. It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination. In sum, numerous lapses and irregularities in the chain of custody belie the prosecutions position that the integrity and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This

means that proof beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found guilty.64 Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People v. Sta. Maria,65 this Court held that said section was silent as to the consequences of such failure, and said silence could not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility of the evidence but only its weight.66 Thus, had the subject items in this case been admissible, their evidentiary merit and probative value would be insufficient to warrant conviction. It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the performance of official duty should prevail. However, such presumption obtains only when there is no deviation from the regular performance of duty.67 Where the official act in question is irregular on its face, the presumption of regularity cannot stand. In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence of the accused.68 This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest, search and seizure procedure under the law.69 Some bona fidearrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs. It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.70 On a final note, this Court takes the opportunity to be instructive on Sec. 11 71 (Possession of Dangerous Drugs) and Sec. 1572 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting

that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 1473 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 1274(Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.1avvphi1 In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate release from detention, unless they are confined for any other lawful cause. Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this decision the action he has taken. Copies shall also be furnished the Director-General, Philippine National Police, and the Director-General, Philippine Drugs Enforcement Agency, for their information and guidance. The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs Board for destruction in accordance with law. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 186529 August 3, 2010

"That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the jurisdiction of this Honorable Court, the said accused, did then and there, unlawfully, feloniously and willfully have in his possession five point zero one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride commonly known as "Shabu", a regulated drug without any permit or license from the proper authorities to possess the same. CONTRARY TO LAW."7 "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused did then and there, unlawfully, feloniously and willfully transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu without any permit or license from the proper authorities to transport the same. CONTRARY TO LAW."8 During the arraignment, appellant pleaded "Not Guilty" to both charges.

PEOPLE OF THE PHILIPPINES, Appellee, vs. JACK RACHO y RAQUERO, Appellant. DECISION NACHURA, J.: On appeal is the Court of Appeals (CA) Decision dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 affirming the Regional Trial Court2 (RTC) Joint Decision3 dated July 8, 2004 finding appellant Jack Racho y Raquero guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic Act (R.A.) No. 9165. The case stemmed from the following facts: On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent later reported the transaction to the police authorities who immediately formed a team composed of member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the local police force to apprehend the appellant.4 The agent gave the police appellants name, together with his physical description. He also assured them that appellant would arrive in Baler, Aurora the following day. On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime of the day wearing a red and white striped T-shirt. The team members then posted themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier. Having alighted from the bus, appellant stood near the highway and waited for a tricycle that would bring him to his final destination. As appellant was about to board a tricycle, the team approached him and invited him to the police station on suspicion of carrying shabu. Appellant immediately denied the accusation, but as he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.5 The team then brought appellant to the police station for investigation. The confiscated specimen was turned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with appellants name. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride. 6 Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs, the accusatory portions of which read:
1

At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to inform him about their ailing father. He maintained that the charges against him were false and that no shabu was taken from him. As to the circumstances of his arrest, he explained that the police officers, through their van, blocked the tricycle he was riding in; forced him to alight; brought him to Sea Breeze Lodge; stripped his clothes and underwear; then brought him to the police station for investigation.9 On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of Violation of Section 5, Article II, R.A. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed the RTC decision.11 Hence, the present appeal. In his brief,12 appellant attacks the credibility of the witnesses for the prosecution. He likewise avers that the prosecution failed to establish the identity of the confiscated drug because of the teams failure to mark the specimen immediately after seizure. In his supplemental brief, appellant assails, for the first time, the legality of his arrest and the validity of the subsequent warrantless search. He questions the admissibility of the confiscated sachet on the ground that it was the fruit of the poisonous tree. The appeal is meritorious. We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.13 Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of shabu and, consequently, the admissibility of the sachet. It is noteworthy that although the circumstances of his arrest were briefly discussed by the RTC, the validity of the arrest and search and the admissibility of the evidence against appellant were not squarely raised by the latter and thus, were not ruled upon by the trial and appellate courts.

It is well-settled that an appeal in a criminal case opens the whole case for review. 1avvphi1 This Court is clothed with ample authority to review matters, even those not raised on appeal, if we find them necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered. This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt. 14 After a thorough review of the records of the case and for reasons that will be discussed below, we find that appellant can no longer question the validity of his arrest, but the sachet of shabu seized from him during the warrantless search is inadmissible in evidence against him. The records show that appellant never objected to the irregularity of his arrest before his arraignment. In fact, this is the first time that he raises the issue. Considering this lapse, coupled with his active participation in the trial of the case, we must abide with jurisprudence which dictates that appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have waived his right to question the validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of the arrest affects only the jurisdiction of the court over his person. Appellants warrantless arrest therefore cannot, in itself, be the basis of his acquittal. 15 As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not the search which yielded the alleged contraband was lawful. 16 The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.17 Said proscription, however, admits of exceptions, namely: 1. Warrantless search incidental to a lawful arrest; 2. Search of evidence in "plain view;" 3. Search of a moving vehicle; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances.18 What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.19 The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in the act of actually committing a crime or attempting to commit a crime in the presence of the apprehending officers as he arrived in Baler, Aurora bringing with him a sachet of shabu.20 Consequently, the warrantless search was considered valid as it was deemed an incident to the lawful arrest.

Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.21 Thus, given the factual milieu of the case, we have to determine whether the police officers had probable cause to arrest appellant. Although probable cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. 22 The determination of the existence or absence of probable cause necessitates a reexamination of the established facts. On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent reported the transaction to the police authorities who immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00 a.m., appellant called up the agent with the information that he was on board a Genesis bus and would arrive in Baler, Aurora anytime of the day wearing a red and white striped T-shirt. The team members posted themselves along the national highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with, and when the latter was about to board a tricycle, the team approached him and invited him to the police station as he was suspected of carrying shabu. When he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.23 The team then brought appellant to the police station for investigation and the confiscated specimen was marked in the presence of appellant. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride. Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest. The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.24 We find no cogent reason to depart from this well-established doctrine. The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v. Nuevas.27 In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the police assembled a team and deployed themselves near the Philippine National Bank (PNB) in Olongapo City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females and a man got off. The informant then pointed to the team members the woman, "Aling Rosa," who was then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When asked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag was found to contain dried marijuana leaves.28 The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao City, received a report from a civilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for the proliferation of marijuana in the area. Reacting to the report, the Intelligence Section conducted surveillance. For five days, they gathered information and learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed the police that Tudtud had headed to Cotabato and would be back later that day with a new stock of marijuana. At around 4:00 p.m. that same day, a team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m., two men disembarked from a

bus and helped each other carry a carton. The police officers approached the suspects and asked if they could see the contents of the box which yielded marijuana leaves. 29 In People v. Nuevas, the police officers received information that a certain male person, more or less 54" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana leaves. While conducting stationary surveillance and monitoring of illegal drug trafficking, they saw the accused who fit the description, carrying a plastic bag. The police accosted the accused and informed him that they were police officers. Upon inspection of the plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks wrapped in a blue cloth. In his bid to escape charges, the accused disclosed where two other male persons would make a delivery of marijuana leaves. Upon seeing the two male persons, later identified as Reynaldo Din and Fernando Inocencio, the police approached them, introduced themselves as police officers, then inspected the bag they were carrying. Upon inspection, the contents of the bag turned out to be marijuana leaves. 30 In all of these cases, we refused to validate the warrantless search precisely because there was no adequate probable cause. We required the showing of some overt act indicative of the criminal design. As in the above cases, appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about to commit an offense. At the time of the arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect and conclude that he was committing or intending to commit a crime. Were it not for the information given by the informant, appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu would not have been confiscated. We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to justify a search incident to a lawful warrantless arrest. As cited in People v. Tudtud, these include People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People v. Montilla,35 People v. Valdez,36 and People v. Gonzales.37 In these cases, the Court sustained the validity of the warrantless searches notwithstanding the absence of overt acts or suspicious circumstances that would indicate that the accused had committed, was actually committing, or attempting to commit a crime. But as aptly observed by the Court, except in Valdez and Gonzales, they were covered by the other exceptions to the rule against warrantless searches. 38 Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their office received the "tipped information" on May 19, 2003. They likewise learned from the informant not only the appellants physical description but also his name. Although it was not certain that appellant would arrive on the same day (May 19), there was an assurance that he would be there the following day (May 20). Clearly, the police had ample opportunity to apply for a warrant.39 Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." Without the confiscated shabu, appellants conviction cannot be sustained based on the remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to
31 32 33 34

question the illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. 40 One final note. As clearly stated in People v. Nuevas,41 x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.42 WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CAG.R. CR-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his confinement, within ten (10) days from notice. No costs. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181881 October 18, 2011

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office. I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted. Concerned Govt employee3 Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive. The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read: "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better." "All PCs Of PALD and LSD are being backed up per memo of the chair."

BRICCIO "Ricky" A. POLLO, Petitioner, vs. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, Respondents. DECISION VILLARAMA, JR., J.: This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employees personal files stored in the computer were used by the government employer as evidence of misconduct. Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal. The factual antecedents:

"CO IT people arrived just now for this purpose. We were not also informed about this. Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC. On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David. The letter-complaint reads: The Chairwoman Civil Service Commission Batasan Hills, Quezon City Dear Madam Chairwoman, Belated Merry Christmas and Advance Happy New Year! "We cant do anything about it its a directive from chair." "Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5 Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters 7 in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations: Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.9 Petitioner filed his Comment, denying that he is the person referred to in the anonymous lettercomplaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against selfincrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10 On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007. Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed

legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer. On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14 On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsels non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.18 On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioners motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch. In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte. On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads: WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.21 On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of OConnor v. Ortega22 as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search

and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope. With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its accessory penalties. In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for reconsideration. By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA. His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that I THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521; II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION; III THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION; IV THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26 Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27 which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and seizures.28 But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti 29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1[3], Article III) was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction. 30 In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).32 In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by police." That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."36 On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches: x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is

the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individuals office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted; emphasis supplied.) On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38 Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality decision discussed the following principles: Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "searchwas not a reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees legitimate expectations of privacy against the governments need for supervision, control, and the efficient operation of the workplace. xxxx In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x xxxx The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the

public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. We come to a similar conclusion for searches conducted pursuant to an investigation of workrelated employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agencys work, and ultimately to the public interest. x x x xxxx In sum, we conclude that the "special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct,should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: "Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place," x x x Ordinarily, a search of an employees office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.) Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the

justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope. In OConnor the Court recognized that "special needs" authorize war rantless searches involving public employees for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40 OConnor was applied in subsequent cases raising issues on employees pr ivacy rights in the workplace. One of these cases involved a government employers search of an office computer, United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security office r. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the contents of Simons computer; computer diskettes found in Simons desk drawer; computer files stored on the zip dri ve or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged. Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced in OConnor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer. x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x xxxx

x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office. Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment. xxxx The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office. xxxx In the final analysis, this case involves an employees supervisor entering the employees government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy equipment that the employer knew contained evidence of crimes committed by the employee in the employees office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.) This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider include "(1) the employees relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.44 Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment. 45 We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons. Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides: POLICY 1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes. 2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs. 3. Use of the Computer Resources is a privilege that may be revoked at any given time. xxxx No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system. The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes. 5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that theCSC may use human or automated means to monitor the use of its Computer Resources. 6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance. xxxx Passwords 12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another Users password or account. 13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular Users password. Only members of the Commission shall authorize the application of the said global passwords. x x x x47 (Emphasis supplied.) The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes. One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the affirmative. The search of petitioners computer files was conducted in connection with investigation of work related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit: 8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties; 9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation; 10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV; 11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division; x x x x50 A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees computer hard drive was first remotely examined by a computer informatio n technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.52 Under the facts obtaining, the search conducted on petitioners com puter was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasijudicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation. Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer. All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible. 53 Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in OConnor. The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies,

equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence. The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him. Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service. Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55 The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of t he subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus: It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates

that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak. Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer. To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted. At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended. Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?56 Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint: Rule II Disciplinary Cases SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment. xxxx We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals 57 -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.) As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.59 In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED. With costs against the petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 187725 January 19, 2011

The testimonies of the prosecution witnesses are essentially summarized by the Office of the Solicitor General (OSG), as follows: In the evening of September 8, 1992, witness Gloria Haboc, together with the victim Leticia Aldemo, Benjamin Jesalva (petitioner), Elog Ubaldo,12 Jo Montales and Romy Paladin were at Nenas place playing mahjong. A certain Mrs. Encinas and Atty. Alibanto were also there. At about 10 oclock that night, Glorias group left Nenas place and boarded the Isuzu panel of petitioner. With the exception of Jo Montales, the group proceeded to Bistro Christina to eat and drink. While Gloria had softdrink, Leticia drank two (2) bottles of beer, and the rest consumed beer and [F]undador until 11:30 in the evening. After they ate and drank, the group, with the exception of Elog Ubaldo who flagged down a tricycle, once again boarded petitioners Isuzu panel as it was usually petitioner who drove them home. The victim Leticia Aldemo was seated at the front seat. Petitioner dropped Romy Paladin at his house first, followed by Gloria, who resided some 20 meters away from Leticias house. While at Glorias house, petitioner wanted to drink some more but Gloria told him to defer it until the next day because the stores were already closed. Gloria then gave Leticia three (3) sticks of barbecue and accompanied her and petitioner at the gate. After petitioner and Leticia boarded the Isuzu [panel], the former immediately accelerated his car and went to the direction of 6th Street instead of towards 7th Street where Leticias house was situated. At about 12:20 early morning of September 9, 1992, the group of SPO1 Edgardo Mendoza (SPO1 Mendoza) of the Sorsogon PNP Mobile Patrol Section chanced upon petitioners Isuzu [panel] in St. Rafael Subdivision in [Our Ladys Village] OLV, Pangpang, Sorsogon. The police patrol team approached the vehicle and SPO1 Mendoza focused a flashlight at the front portion of the vehicle to check what was going on. There, SPO1 Mendoza saw petitioner whom he knew since childhood seated in front of the wheel so he called out his name. Instead of heeding his call, however, petitioner did not respond, immediately started the engine and sped away toward Sorsogon town proper which is directly opposite his place of residence which is Ticol, Sorsogon, Sorsogon. At about the same time that night, Noel Olbes, a driver for the MCST Sisters holding office at the Bishops Compound in Sorsogon, Sorsogon, was also in OLV Pangpang. While he was walking from a certain Leas house, he saw a woman naked from the waist down and lying on her belly on the highway. Her jeans and [panty] were beside her. Because it was raining, Olbes pitied her so he carried her and her things to the shed some 10 meters away. As he was doing so, a tricycle being driven by Eduardo De Vera focused its headlight in his direction. De Vera called out, "What is that?" Because he received no response from Noel Olbes, he decided to bring his passenger home first and just come back to check the site later. Meanwhile, upon reaching the shed, Olbes noticed that the woman was bleeding that he even got stained with her blood. Afraid that he might be implicated, he hurriedly left the woman at Hazelwood such that when De Vera came back, he no longer found Olbes. De Vera then proceeded to the police station to report the incident to [SPO1] Balaoro. De Vera, SPO1 Balaoro and SPO1 Sincua eventually returned to comb the area but to no avail. On their way back at about 1:15 oclock (sic) in the morning, they met Lt. Caguia talking with Noel Olbes. De Vera lost no time in identifying him to be the man he saw with the woman. At this point, Olbes admitted the allegation but professed innocence. He admitted he left the woman in Hazelwood where the police found her. Eventually, Olbes was investigated by the police and was not released until the next day. However, because the evidence pointed to petitioner as the last person seen with the victim, a search for him was conducted. He "surrendered" at one (1) oclock in the afternoon accompanied by Fiscal Jose Jayona, his first cousin.13

BENJAMIN JESALVA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: Before this Court is a Petition for Review1 on Certiorari under Rule 45 of the Rules of Civil Procedure, seeking the reversal of the Court of Appeals (CA) Decision 2 dated October 17, 2008, which affirmed with modification the decision3 of the Regional Trial Court (RTC) of Sorsogon, Sorsogon, dated November 18, 1997, finding petitioner Benjamin Jesalva alias Ben Sabaw4 (petitioner) guilty beyond reasonable doubt of the crime of Homicide. The Facts On September 11, 1992, the Chief of Police of Sorsogon, Sorsogon, filed a criminal complaint5 for Frustrated Murder against petitioner. Four days thereafter, or on September 15, 1992, the complaint was amended, charging petitioner with the crime of Murder, as the victim Leticia Aldemo6 (Leticia) died on September 14, 1992.7 After conducting a hearing on the bail application of petitioner, the Municipal Trial Court (MTC) of Sorsogon, Sorsogon, on December 18, 1992, granted him bail.8 On January 11, 1993, the MTC recommended the filing of Murder against petitioner, and then ordered the transmittal of the records of the case to the Provincial Prosecutor of Sorsogon.9 Thus, petitioner was charged with the crime of Murder in an Information10 dated January 26, 1993, which reads: That on or about the 9th day of September, 1992 in the Municipality of Sorsogon, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, taking advantage of superior strength, with treachery and evident premeditation with the use of motor vehicle and during night time, did then and there [wilfully], unlawfully and feloniously attack, assault, manhandle and use personal violence upon [Leticia] Aldemo, inflicting upon the latter serious and mortal wounds which directly caused her death shortly thereafter, to the damage and prejudice of her legal heirs. CONTRARY TO LAW. When arraigned on March 1, 1993, petitioner entered a plea of not guilty to the offense charged.11 Thereafter, trial on the merits ensued. In the course of the trial, two varying versions arose. Version of the Prosecution

The prosecution highlighted that, per testimony of Gloria Haboc, Leticia disclosed to her that petitioner was courting Leticia. However, Leticia told petitioner that they should just remain as friends because she was already married, and that she loved her handsome husband.14 Moreover, the prosecution asseverated that, at around 12:20 a.m. of September 9, 1992, while conducting patrol in St. Rafael Subdivision, 15 together with other police officers, Senior Police Officer 1 Edgardo Mendoza (SPO1 Mendoza), by using his flashlight, saw petitioner on board his vehicle alone. Upon sight, petitioner immediately started his vehicle and drove toward the town proper of Sorsogon, which was directly opposite his residence in Ticol, Sorsogon, disregarding SPO1 Mendozas calls.16Lastly, at about 1:00 p.m. of September 9, 1992, petitioner, together with his first cousin Fiscal Jose Jayona (Fiscal Jayona), went to the police station, wherein he voluntarily intimated to SPO4 William Desder (SPO4 Desder) that Leticia jumped out of his vehicle.17 At about 1:20 p.m. of September 9, 1992, SPO2 Enrique Renoria, together with other police officers, Fiscal Jayona, and petitioner inspected the place, which petitioner identified as the place where he and Leticia sat. They found bloodstains thereat.18 After the prosecution presented twelve (12) witnesses, the defense moved for leave of court to file demurrer to evidence. On February 21, 1994, the defense filed before the RTC, Branch 51, its Demurrer to Evidence,19 which the RTC, Branch 51, denied in its Order20 dated July 8, 1994. On August 11, 1994, the defense filed a Motion21for Reconsideration of the Order dated July 8, 1994 and Inhibition of Presiding Judge, which the prosecution opposed. The Presiding Judge of the RTC, Branch 51, voluntarily inhibited himself from taking any further action in the case;22 hence, the case was re-raffled to the RTC, Branch 52. Acting on the pending Motion for Reconsideration of the defense, the Presiding Judge of the RTC, Branch 52, denied the same and set the reception of evidence of the defense.23 Version of the Defense In his relatively short stint on the witness stand, petitioner denied that he killed Leticia. He testified that he did not have any reason to kill her, and that he had many reasons why he should not kill her.24 The prosecution manifested that it would not conduct a cross-examination on the person of petitioner as his testimony was tantamount to pure denial.25 To prove that there was a broken chain of circumstantial evidence, the defense presented, as witness, Eduardo de Vera. The CA narrated: 12. Eduardo de Vera declared that on September 9, 1992 at about 12:30 a.m., he was driving his tricycle en route to OLV, Pangpang, Sorsogon; upon reaching the junction of the national road or highway, he saw a man and a woman three meters from the edge of the road; he stopped his tricycle and focused the headlight of his tricycle towards the two; he saw the woman leaning on the left arm of the man while the man was on a squatting position; he asked them "what is that?" and did not get any response; that the man was hiding his face and saw little blood on the clothes of the woman; he saw the woman with clothes, a polo shirt and pants; he decided to bring home his passenger home (sic) first and then returned to the scene but found no one there; he reported the matter to [SPO1] Balaoro, who immediately accompanied him to the place; they searched for the man and woman but they could not find them; they checked the Sorsogon Provincial Hospital but nobody had been brought there; then they proceeded back to the junction and later to the Sorsogon town proper; upon reaching Barangay Tugos, they saw [Lt.] Caguia talking with a man, whom he (De Vera) recognized as the man with the woman; [Lt.] Caguia directed the man to go to Police Sub-Station 1; at the police Sub-Station 1, he came to know the name of the man Noel Olbes; he saw bloodstains on Olbes arms, hands, face and nose; the police interrogated him about it and he replied that he just helped the woman. On cross-examination, he admitted that he has known [petitioner] for a longtime; and he has good relationship with him; [petitioner] was his bondsman in Criminal Case No. 95-3989 for illegal

possession of firearms and because of this, he is indebted to him and he thus wants to repay his gratitude to [petitioner]; [petitioner] requested him to be a witness in the case. 26 Relative to the subsequent events, the CA summarized the testimonies of SPO1 Eduardo Balaoro and Noel Olbes (Olbes), as follows: 6. SPO1 Eduardo Balaoro essayed that at around 1:00 a.m. of September 9, 1992, Eduardo De Vera reported to him at the Police Sub-Station 1 that he saw a man, who was in squatting position, and a woman, who had blood on the upper right breast of her clothes, lean[ing] against the man and that after De Vera brought his tricycle passenger home, he returned to the site but he could not find the two anymore; upon receiving the report, he (SPO1 Balaoro), together with SPO1 Sincua and De Vera, proceeded to the diversion road, at the junction going to the hospital and Pangpang, Sorsogon, Sorsogon to investigate; they searched the place and went to the hospital but found nothing; on their way back, at around 1:15 [a.m.] they saw Noel Olbes talking with Lt. Caguia at Barangay Tugos; De Vera pointed to Olbes as the man he saw with the woman at the crossing so they brought him to Police Sub-Station 1 for investigation; Olbes told them that he saw the woman lying on the side of the road so he tried to lift her up but when he saw the tricycle (De Veras) he became afraid as he might be implicated in the crime so he brought her to Hazelwood, which is five meters away from the highway; at 2:25 a.m. the patrol team found Leticia Aldemo, whom they found naked from the waist down; at the garage of Hazelwood; they found the long pants of the victim lying beside her and noted that her panty was still on one of her knees; the victims body appeared to have been laid down; they did not find any blood in the garage except where the victims body was found outside the garage, they saw the other pair of shoes of a woman and thick bloodstains; he (SPO1 Balaoro) brought Olbes to Balogo station and entrusted him to their investigator. 7. Noel Olbes testified that he is a driver for the MCST Sisters who are holding office at the Bishops Compound in Sorsogon, Sorsogon; that on September 8, 1997, he went out with his friends Danny, Oca and Ely in Almendras to drink a bottle of gin; at around 6:30 p.m. he went to downtown Sorsogon and roamed around until 10:30 p.m.; then he went to Bahay Kainan and at about 11:00 or 11:30 p.m., he went to Pena Fast Food and took a bottle of beer; upon the invitation of Lea, he went inside Pena and drank another bottle of beer; he brought Lea to her home at OLV, Pangpang, Sorsogon, Sorsogon; from Leas house, he walked and upon reaching the junction of OLV, he saw a woman lying on her belly naked from the waist down; the woman was just uttering guttural sound; her jeans and panty were just lying beside her; taking pity on the woman and since it was raining that night, he carried the woman to a nearby shed in order that she would not be run over by motor vehicles; he also took the panty and the jeans to the shed; he noticed that a tricycle stopped for a while and focused its headlight on them and proceeded on its way; when he laid down the woman in the shed, he noticed that she was bleeding and he was stained with her blood; after seeing the blood, he got scared and left; he walked towards the Sorsogon town proper and after about forty-five minutes, two policem[e]n apprehended him and brought him to the police station for investigation; while being investigated, he was not apprised of his constitutional rights and made to sign the police blotter; he was detained as he was a suspect for the injuries of the victim; after 7 or 8 hours, he was released; and he executed a Sworn Statement and affirmed its contents.27 Dr. Antonio Dioneda, Jr.28 and Dr. Wilhelmino Abrantes (Dr. Abrantes) testified on the injuries suffered by Leticia, which eventually caused her death: 9. Dr. Antonio Dionedas testified that he encountered on September 9, 1992 a patient by the name of Leticia Aldemo, who was in comatose state; she sustained the following injuries (1) severe cerebral contusion; (2) 2.5 cm punctured wound, occipital area (3) .5 cm punctured wound, parietal left area[;] (4) multiple contusion hematoma

antero lateral aspect deltoid left area[;] (5) contusion hematoma 3rd upper left arm; (6) contusion hematoma left elbow[;] (7) abrasion left elbow[;] (8) hematoma, 3rd left thigh[;] (9) abrasion right knee[;] (10) multiple confluent abrasion right foot[;] (11) contusion hematoma right hand[;] (12) abrasion right elbow[;] (13) contusion hematoma right elbow[;] and (14) skull-segmented fracture parietal bone with separation. He explained that the punctured wound in the occipital area (lower back of the skull) was caused by a pebble which they recovered from said area; the punctured wound on the parietal left area was caused by a sharp object and may have been secondary to a fall on a rough surface; the first three findings could also have been caused by the punch made by the perpetrator; the fourth finding could have been caused by a blunt instrument or a punch or a strong grip; the fifth and the sixth findings could have been caused also by some of the above-mentioned means; the eighth finding could have been caused by a fall or rubbing on a hard object; the ninth finding could have been caused by a blunt instrument or a fist blow while the tenth finding could have been caused by a fall on a rough object and the knee rubbing on a rough object; the eleventh finding could have been due to a fall or by being dragged; the twelfth finding could be caused by a blunt instrument or by a fall or by fist blow and the thirteenth finding could also be caused by a fall or fist blow. He stated [that] the victim died despite the operation he performed on her. xxxx 14. Dr. Wilhelmino Abrantes He explained the different kinds of injuries sustained by the victim. In addition, he stated that since there were wounds sustained by the victim in the dorsum part of the foot and sustained injuries on both knees, upper portion of the back of the hand, the victim could have been thrown off while unconscious. 29 The RTCs Ruling On November 18, 1997, the RTC ruled in favor of the prosecution, finding petitioner guilty beyond reasonable doubt based on circumstantial evidence, not of the crime of Murder, but of Homicide. The RTC ratiocinated that, in the absence of any direct evidence or testimonies of eyewitnesses, treachery was not established, and that evident premeditation and abuse of superior strength were not duly proven. Thus, the RTC disposed of the case in this wise: WHEREFORE, premises considered, the Court finds the accused Benjamin Jesalva alias Ben Sabaw guilty beyond reasonable doubt of the crime of Homicide penalized under Art. 249 of the Revised Penal Code and considering that there was no aggravating nor mitigating circumstances attendant thereto and taking into consideration the Indeterminate Sentence Law, the court hereby sentences the accused to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum and to pay death indemnity of the sum of P50,000.00 to the legal heirs of the victim, plus P42,755.45 for compensatory damages plus P50,000.00 by way of moral damages and P10,000.00 as attorneys fees (People v. Aguiluz, March 11, 1992). SO ORDERED.30 Aggrieved, petitioner appealed to the CA.31 The CAs Ruling

On October 17, 2008, the CA pertinently held, among others, that petitioner could not point to Olbes as the culprit because, when Eduardo de Vera saw the former holding on to Leticia in a squatting position, Olbes was in the act of lifting her in order to bring her to the nearby shed. The CA opined that, if any misdeed or omission could be attributed to Olbes, it was his failure to bring Leticia to a nearby hospital, because his fear of being implicated in the crime clouded his better judgment. Thus: All told, We find that the prosecutions evidence suffice to sustain the accused -appellants conviction for homicide. As to the award of attorneys fees, We find the award of P10,000.00 by the trial court meritorious, the records reveal that services of private prosecutor was engaged. Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. With the attendant mitigating circumstance of voluntary surrender of accused-appellant, the penalty reclusion temporal is imposed in its minimum period. Accordingly, accused-appellant Benjamin J. Jesalva should suffer the indeterminate penalty of TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal as maximum and SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum. WHEREFORE, premises considered, the Decision of the Regional Trial Court of Sorsogon, Sorsogon, Branch 52 dated November 18, 1997 in Criminal Case No. 3243 is AFFIRMED with MODIFICATION as to the penalty. Accused-appellant Benjamin J. Jesalva is sentenced to serve the indeterminate penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor, as minimum, to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as maximum. SO ORDERED.32 Undaunted, petitioner filed a Motion for Reconsideration,33 which the CA, however, denied in its Resolution34dated April 7, 2009 for lack of merit. Hence, this Petition based on the following grounds: A) THE COURT OF APPEALS AND RTC DECISIONS CONVICTING PETITIONER OF THE CRIME OF HOMICIDE BASED ON PURELY CIRCUMSTANTIAL EVIDENCE WERE BOTH NOT IN ACCORD WITH ESTABLISHED JURISPRUDENCE REQUIRING THAT SUCH BE ACTED WITH CAUTION AND THAT ALL THE ESSENTIAL FACTS MUST BE CONSISTENT WITH THE HYPOTHESIS OF GUILT; AND B) THE COURT OF APPEALS, AS WELL AS THE TRIAL COURT, SERIOUSLY ERRED IN RULING THAT STATEMENTS MADE BY PETITIONER IN THE POLICE STATION WERE ADMISSIBLE AS HE WAS THEN NOT UNDER CUSTODIAL INVESTIGATION DESPITE SUFFICIENT EVIDENCE ON RECORD THAT HE WOULD HAVE BEEN DETAINED BY THE POLICE HAD HIS FISCAL-COMPANION NOT [TAKEN] HIM UNDER HIS CUSTODY.35 Petitioner argues that no evidence was ever introduced as to how, when, and where Leticia sustained her injuries. No witness ever testified as to who was responsible for her injuries. He refutes the prosecutions contention that, even if he took the 6th Street, the same could still lead to the 7th Street, where Leticias house is located. Petitioner stresses that Olbes should have

been considered as a suspect in this case, considering that he was the last person seen with Leticia when she was still alive. He avers that the statements he made at the police station are not admissible in evidence, considering that he was, technically, under custodial investigation, and that there was no waiver of his right to remain silent.36 Moreover, petitioner alleges that the fatal injuries sustained by Leticia, per the testimony of Dr. Abrantes, are consistent with a fall, thereby suggesting petitioners innocence. Petitioner claims that the evidence shows that there was more blood in Hazelwood than in the place where Olbes spotted Leticia, thereby suggesting that something worse than her jumping out of the vehicle might have happened. 37 On the other hand, respondent People of the Philippines, through the OSG, argues that only questions of law may be entertained by this Court, and that we accord great respect to factual findings of the trial court especially when affirmed by the CA. The OSG insists that the CA, affirming the RTCs ruling, did not err in convicting petitioner on the basis of circumstantial evidence, because the particular circumstances enumerated by both the RTC and the CA satisfactorily meet the requirements of the rules and of jurisprudence for conviction. Moreover, the OSG claims that the statements made by petitioner before SPO4 Desder, in the presence of Fiscal Jayona, were voluntarily given and were not elicited on custodial investigation. Lastly, the OSG counters that petitioner was not deprived of his rights since he was never held for questioning by any police officer upon arriving at the police station and, besides, he was accompanied by his first cousin, Fiscal Jayona.38 Our Ruling The Petition is bereft of merit. Custodial investigation refers to "any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him. 39 The rule begins to operate at once, as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements.40 The assailed statements herein were spontaneously made by petitioner and were not at all elicited through questioning. It was established that petitioner, together with his cousin Fiscal Jayona, personally went to the police station and voluntarily made the statement that Leticia jumped out of his vehicle at around 12:30 a.m. of September 9, 1992.41 The RTC and the CA did not, therefore, err in holding that the constitutional procedure for custodial investigation is not applicable in the instant case. Be that as it may, even without these statements, petitioner could still be convicted of the crime of Homicide. The prosecution established his complicity in the crime through circumstantial evidence, which were credible and sufficient, and which led to the inescapable conclusion that petitioner committed the said crime. Indeed, when considered in their totality, the circumstances point to petitioner as the culprit. Direct evidence of the commission of the crime charged is not the only matrix wherefrom a court may draw its conclusions and findings of guilt. There are instances when, although a witness may not have actually witnessed the commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person last seen with the victim immediately before and right after the commission of the crime. This is the type of positive identification, which forms part of circumstantial evidence. In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted upon under all circumstances, the guilt of vicious felons who committed heinous crimes in secret or in secluded places will be hard, if not well-nigh impossible, to prove.42

Thus, there can be a verdict of conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime. However, in order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz.: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 43 We accord respect to the following findings of the CA, affirming those of the RTC: After a thorough review of the records of the case, We find that the circumstantial evidence proved by the prosecution, when viewed in its entirety, points unerringly to [petitioner] Benjamin Jesalva as the person responsible for the death of the victim Leticia Aldemo. Truly, the following combination of the circumstances which comprised such evidence forms an unbroken chain that points to [petitioner] and no other, as the perpetrator of the crime, to wit: 1. [Petitioner] Benjamin Jesalva (who was previously courting the victim Leticia Aldemo, and whom the latter advised to stop as she was already married) together with Gloria Haboc, and six other individuals left Nena Ables house at 10 p.m. of September 8, 1992 after playing mahjong thereat. They rode in [petitioners] red panel. 2. Benjamin Jesalva, Leticia Aldemo, Gloria Haboc and two others proceeded to Bistro Christina. [Petitioner], together with other two male companions, consumed one bottle of Fundador, in addition to the three bottles of beer. At 11:30 p.m., the group left the place. 3. After dropping one male companion at his house, Benjamin Jesalva, together with Leticia Aldemo, proceeded to bring Gloria Haboc to her home, which was only twenty meters away from Leticias residence. 4. After staying at Gloria Habocs house for five minutes, and denied another drink, Benjamin Jesalva immediately accelerated his vehicle en route to 6th Street instead of the shorter and direct route, the 7th street, where Leticia Aldemos house is located; 5. Leticia Aldemo never reached home as testified by her husband Efren Aldemo; 6. At around 12:20 a.m. of September 9, 1992, the police patrolling the St. Ra[f]ael Subdivision saw the red panel thereat and when they approached and beamed a flashlight, they saw Benjamin Jesalva behind the wheel, who suddenly drove away in the direction of Sorsogon town proper, opposite to where he lives. SPO1 Eduardo Mendoza told Benjamin Jesalva (whom he had known since his teen-age years) to stop but the latter did not respond or heed his call; 7. At 12:30 oclock (sic) of even date, Noel Olbes saw the body of Leticia Aldemo sprawled on her belly at the crossing/junction of OLV, Pangpang Sorsogon, Sorsogon, naked from the waist down. He lifted her up and brought the body at Hazelwood, which is about 10 meters away from the highway. 8. The police found the body of the victim at Hazelwood at around 2:15 a.m. of the same day, and brought her to the Sorsogon Provincial Hospital in comatose condition. 9. The police proceeded to inform the victims sister, who in turn informed the victims husband of the incident.

10. In the morning of September 9, 1992, the police looked for Benjamin Jesalva to invite him at the police station but was not able to find him. 11. At around 1:00 oclock p.m. of September 9, 1992, Benjamin Jesalva, together with his first cousin, Asst. Prosecutor Jose Jayona, presented himself at the PNP Sorsogon, Sorsogon headquarters, where he voluntarily stated that the victim Leticia Aldemo was his passenger in his vehicle at about 12:30 in the early morning of September 9, 1992 at St. Rafael Subdivision but upon reaching the crossing of OLV, Pangpang, Sorsogon, Sorsogon near the Provincial Hospital, she jumped out of his vehicle. These declarations were recorded in the police blotter by PO1 Enrique [Renoria] upon the instruction of SPO4 William Desder, the PNP Sorsogon Chief Investigator. 12. At about 1:30 p.m. of the same day, a police team, together with [petitioner] and Asst. Prosecutor Jayona, went to St. Ra[f]ael Subdivision to conduct an ocular inspection. [Petitioner] pointed to the police the place where he and the victim spent their time. The police photographed what appear[ed] to be bloodstains just two meters away from the place pointed by [petitioner]. 13. Dr. Antonio Dioneda testified that the punctured wound in the occipital area was caused by a pebble which he recovered from said area; the punctured wound in the parietal left area was caused by a sharp object and may have been secondary to a fall on a rough surface, the cerebral contusion, the punctured wound in the occipital and in the parietal area could also be caused by a punch by the perpetrator. As to the multiple contusion hematoma anterior lateral aspect of the deltoid left area was caused by a blunt instrument or a punch or a strong grip; the contusion hematoma on the upper left arm and left elbow could as well be similarly caused by a blunt instrument or a punch or a strong grip. As to the abrasion on the right knee, the same could have been caused by a blunt instrument or a fist blow. The multiple confluent abrasion[s] on the right foot could have been caused by a fall on a rough object. The abrasions on the right elbow could have been caused by a blunt instrument or by a fall or by a fist blow. The same is true with the contusion hematoma found on the victims right elbow. 44 Petitioners mere denial cannot outweigh the circumstantial evidence clearly establishing his culpability in the crime charged. It is well-settled that the positive declarations of a prosecution witness prevail over the bare denials of an accused. The evidence for the prosecution was found by both the RTC and the CA to be sufficient and credible, while petitioners defense of denial was weak, self-serving, speculative, and uncorroborated. Petitioners silence as to the matters that occurred during the time he was alone with Leticia is deafening. An accused can only be exonerated if the prosecution fails to meet the quantum of proof required to overcome the constitutional presumption of innocence. We find that the prosecution has met this quantum of proof in this case.45 All told, we find no reversible error in the assailed CA decision which would warrant the modification much less the reversal thereof. WHEREFORE, the petition is DENIED, and the Court of Appeals Decision dated October 17, 2008 in CA-G.R. CR No. 22126, affirming with modification the decision of the Regional Trial Court, Branch 52, Sorsogon, Sorsogon, in Criminal Case No. 3243, is hereby AFFIRMED. Costs against petitioner. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 176229 October 19, 2011

San, Chan Chit Yue and Tin San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate boxes were recovered from the baggages of the six accused. NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco pertaining to the presence of the chocolate boxes. According to him, he conducted a test on the white crystalline substance contained in said chocolate boxes at the NAIA using the Mandelline ReAgent Test.10 The result of his examination11 of the white crystalline substance yielded positive for methamphetamine hydrochloride or shabu. Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic bag and brought to the Inbond Section. The following day, September 7, 1991, the 13 tourists were brought to the National Bureau of Investigation (NBI) for further questioning. The confiscated stuff were turned over to the Forensic Chemist who weighed and examined them. Findings show that its total weight is 31.1126 kilograms and that the representative samples were positive for methamphetamine hydrochloride.12 Out of the 13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as against petitioner and his five co-accused. Accordingly, six separate Informations all dated September 19, 1991 were filed against petitioner and his co-accused. These Informations were docketed as Criminal Case Nos. 91-1591 to 97. Subsequently, however, petitioner filed a Motion for Reinvestigation13 which the trial court granted. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the filing of a single Amended Information14under Criminal Case No. 91-1592 and to the withdrawal of the other Informations.15 The Amended Information reads: That on or about September 6, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously carry and transport into the country without lawful authority, 31.112 kilograms, more or less, of Methamphetamine Hydrochloride, also popularly known as "SHABU", a regulated drug. CONTRARY TO LAW.16 After pleading not guilty to the crime charged,17 all the accused testified almost identically, invoking denial as their defense. They claimed that they have no knowledge about the transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel agency. Ruling of the Regional Trial Court On April 6, 1995, the RTC rendered a Decision18 finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended, the decretal portion of which reads: WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA WANG, CHAN CHIT yue, ho wai pang, wu hing sum, tin sun mao, and kin san ho (ho kin san) guilty of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as amended for having conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS (p30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant to Republic Act No. 7659 considering its applicability to the accused though retroactively for having a less stricter penalty than that of life imprisonment provided in Republic Act No. 6425. The fine ofP30,000.00 for each accused is imposed pursuant to R.A. No. 6425 it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The

HO WAI PANG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: Infraction of the rights of an accused during custodial investigation or the so-called Miranda Rights render inadmissible only the extrajudicial confession or admission made during such investigation.1 "The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation."2 Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006 Decision3 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming the April 6, 1995 Decision4 of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal Case No. 911592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue,5 Wu Hing Sum, Tin San Mao6 and Kin San Ho7 guilty beyond reasonable doubt for violation of Section 15, Article III8 of Republic Act (R.A.) No. 6425 otherwise known as the Dangerous Drugs Act of 1972. Also assailed is the January 16, 2007 CA Resolution9 denying the motion for reconsideration thereto. Factual Antecedents On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). Among the passengers were 13 Hongkong nationals who came to the Philippines as tourists. At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then manning Lane 8 of the Express Lane. Cinco examined the baggages of each of the 13 passengers as their turn came up. From the first traveling bag, she saw few personal belongings such as used clothing, shoes and chocolate boxes which she pressed. When the second bag was examined, she noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious, she took out four of the chocolate boxes and opened one of them. Instead of chocolates, what she saw inside was white crystalline substance contained in a white transparent plastic. Cinco thus immediately called the attention of her immediate superiors Duty Collector Alalo and Customs Appraiser Nora Sancho who advised her to call the Narcotics Command (NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered. At the ICU, Cinco called the tourists one after the other using the passenger manifest and further examined their bags. The bag of Law Ka Wang was first found to contain three chocolate boxes. Next was petitioners bag which contains nothing except for personal effects. Cinco, however, recalled that two of the chocolate boxes earlier discovered at the express lane belong to him. Wu Hing Sums bag followed and same yielded three chocolate boxes while the baggages of Ho Kin

penalty of death cannot be imposed since the offense was committed prior to the effectivity of R.A. No. 7659. Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG. SO ORDERED.19 From this judgment, all the accused appealed to this Court where the case records were forwarded to per Order of the RTC dated May 10, 1995.20 Later, all the accused except for petitioner, filed on separate dates their respective withdrawal of appeal. 21 This Court, after being satisfied that the withdrawing appellants were fully aware of the consequences of their action, granted the withdrawal of their respective appeals through a Resolution dated June 18, 1997.22 Per Entry of Judgment, 23 said Resolution became final and executory on July 7, 1997. Consequently, petitioner was the only one left to pursue his appeal. Petitioner filed his Brief24 on April 6, 1998 while the brief25 for the respondent People of the Philippines was filed on August 27, 1998 through the Office of the Solicitor General (OSG). Per Resolution26 dated August 30, 2004, this Court referred the appeal to the CA for proper disposition and determination pursuant to this Courts ruling in People v. Mateo.27 Ruling of the Court of Appeals On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during the custodial investigation was indeed violated, it nevertheless went on to hold that there were other evidence sufficient to warrant his conviction. The CA also rebuked petitioners claim that he was deprived of his constitutional and statutory right to confront the witnesses against him. The CA gave credence to the testimonies of the prosecution witnesses and quoted with favor the trial courts ratiocination regarding the existence of conspiracy among the accused. Undeterred, petitioner filed a Motion for Reconsideration28 which the CA denied in its Resolution29 dated January 16, 2007. Hence, this petition for review on certiorari anchored on the following grounds: I WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION. II THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. III

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY. IV THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY THE CONSTITUTION.30 OUR RULING The petition lacks merit. Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions of the accused as against himself. Anent the error first assigned, petitioner takes issue on the fact that he was not assisted by a competent and independent lawyer during the custodial investigation. He claimed that he was not duly informed of his rights to remain silent and to have competent counsel of his choice. Hence, petitioner faults the CA in not excluding evidence taken during such investigation. While there is no dispute that petitioner was subjected to all the rituals of a custodial questioning by the customs authorities and the NBI in violation of his constitutional right under Section 12 31 of Article III of the Constitution, we must not, however, lose sight of the fact that what said constitutional provision prohibits as evidence are only confessions and admissions of the accused as against himself. Thus, in Aquino v. Paiste,32 the Court categorically ruled that "the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if obtained or taken in the course of custodial investigation." In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Moreover, no statement was taken from petitioner during his detention and subsequently used in evidence against him. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its Decision on the testimonies of the prosecution witnesses and on the existence of the confiscated shabu. As the Court held in People v. Buluran, 33 "[a]ny allegation of violation of rights during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused becomes the basis of their conviction." Hence, petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves scant consideration. Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen Ming34 to exculpate himself from the crime charged. Though there are semblance in the facts, the case of Ming is not exactly on all fours with the present case. The disparity is clear from the evidence adduced upon which the trial courts in each case relied on in rendering their respective decisions. Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court c onstrued the accuseds act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. In ruling against the accused, the trial court also gave credence to the sole

testimony of the customs examiner whom it presumed to have performed his duties in regular manner. However, in reversing the judgment of conviction, the Court noted that said examiners testimony was not corroborated by other prosecution witnesses. On the other hand, petitioners conviction in the present case was on the strength of his having been caught inflagrante delicto transporting shabu into the country and not on the basis of any confession or admission. Moreover, the testimony of Cinco was found to be direct, positive and credible by the trial court, hence it need not be corroborated. Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the very act of the commission of the crime. As the Court held in People v Dela Cruz,35 "[n]o rule exists which requires a testimony to be corroborated to be adjudged credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness despite the lack of corroboration, where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction." Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case when there are stark differences between the two cases. Cases must be decided based on their own unique facts and applicable law and jurisprudence. Petitioner was not denied of his right to confrontation. Turning now to the second assigned error, petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to confrontation, viz: Section 14. x x x (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Petitioner asserts that he was deprived of his right to know and understand what the witnesses testified to. According to him, only a full understanding of what the witnesses would testify to would enable an accused to comprehend the evidence being offered against him and to refute it by cross-examination or by his own countervailing evidence. In refutation, the OSG countered that petitioner was given the opportunity to confront his accusers and/or the witnesses of the prosecution when his counsel cross-examined them. It is petitioners call to hire an interpreter to understand the proceedings before him and if he could not do so, he should have manifested it before the court. At any rate, the OSG contends that petitioner was nevertheless able to cross-examine the prosecution witnesses and that such examination suffices as compliance with petitioners right to confront the witnesses against him. We agree with the OSG. As borne out by the records, petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the testimony of Cinco despite the absence of an interpreter. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. Still and all, the important thing is that petitioner, through counsel, was able to fully crossexamine Cinco and the other witnesses and test their credibility. The right to confrontation is

essentially a guarantee that a defendant may cross-examine the witnesses of the prosecution. In People v. Libo-on,36 the Court held: The right to confrontation is one of the fundamental rights guaranteed by the Constitution to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. The chief purpose of the right of confrontation is to secure the opportunity for cross-examination, so that if the opportunity for cross-examination has been secured, the function and test of confrontation has also been accomplished, the confrontation being merely the dramatic preliminary to cross-examination. Under the circumstances obtaining, petitioners constitutional right to confront the witnesses against him was not impaired. Conspiracy among the accused was duly established. Respecting the third assigned error, we uphold the trial courts finding of conspiracy which was quoted by the appellate court in its assailed Decision, and which we once again herein reproduce with approval: On the allegation of conspiracy, the Court finds [no] direct evidence to conclude conspiracy. However, just like in other cases where conspiracy is not usually established by direct evidence but by circumstantial evidence, the Court finds that there are enough circumstantial evidence which if taken together sufficiently prove conspiracy. First, it cannot be denied that the accused somehow have known each other prior to their [departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the one who assisted him in the supposed tour in the Philippines to the extent of directly dealing with the travel agency and [that] Law Ka Wang was the one who received the personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the travel agency. Accused Wu Hing Sum has been known to accused Ho Kin San for about two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and Ho Kin San. These relationships in a way can lead to the presumption that they have the capability to enter into a conspiracy. Second, all the illegal substances confiscated from the six accused were contained in chocolate boxes of similar sizes and almost the same weight all contained in their luggages. The Court agrees with the finding of the trial prosecutor that under the given circumstances, the offense charged [c]ould have been perpetrated only through an elaborate and methodically planned conspiracy with all the accused assiduously cooperating and mutually helping each other in order to ensure its success.37 We find no cogent reason to reverse such findings. "Conspiracy is [the] common design to commit a felony."38 "[C]onspiracy which determines criminal culpability need not entail a close personal association or at least an acquaintance between or among the participants to a crime."39 "It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design." 40 "The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole" as we ruled in People v. Mateo, Jr.41 Here, it can be deduced from petitioner and his coaccuseds collective conduct, viewed in its totality, that there was a common design, concerted action and concurrence of sentiments in bringing about the crime committed. Petitioners guilt was proved beyond reasonable doubt.

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He makes capital on the contention that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two chocolate boxes. Petitioners contentions fail to persuade. True, when principal prosecution witness Cinco first testified on June 3, 1992, she declared that she did not see any chocolate boxes but only personal effects in petitioners bag. 42 Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes from petitioners bag when they were still at the counter. This sufficiently explained why Cinco did not find any chocolate boxes from petitioners bag when they were at the ICU.43 To us, this slight clash in Cincos statements neither dilute her credibility nor the veracity of her testimony. The trial courts words on this matter when it resolved petitioners Demurrer to Evidence in its Order44 of February 16, 1993 is quite enlightening. Thus In claiming that the evidences [sic] presented by the prosecution is insufficient to command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho Wai Pang, because she even testified that she found nothing inside the hand-carried luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992). But that was when investigation was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later on testified that from the express lane in going to the ICU, after the discovery of shabu, she was already carrying with her four (4) chocolate boxes, two of [which] taken from the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant, Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai Pangs bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such testimony is not hearsay evidence. They are facts from the personal perception of the witness and out of her personal knowledge. Neither is it conjectural.45 Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. "In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered."46 Also, where there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the accused, identification should be given full weight. Here, petitioner presented no evidence or anything to indicate that the principal witness for the prosecution, Cinco, was moved by any improper motive, hence her testimony is entitled to full faith and credit. 1avvphi1 Verily, the evidence adduced against petitioner is so overwhelming that this Court is convinced that his guilt has been established beyond reasonable doubt. Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the very act of transporting, along with his co-accused, shabu into the country. In stark contrast, the evidence for the defense consists mainly of denials. Petitioner tried to show that he was not aware of the shabu inside his luggage considering that his bag was provided by the travel agency. However, it bears stressing that the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. As such, the mere commission of the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught committing the act so punished regardless of criminal intent. Moreover, beyond his bare denials, petitioner has not presented any plausible proof to successfully rebut the evidence for the prosecution. "It is basic that affirmative testimony of persons who are eyewitnesses of the events or facts asserted easily overrides negative testimony."47

All told, we are convinced that the courts below committed no error in adjudging petitioner guilty of transporting methamphetamine hydrochloride or shabu into the country in violation of Section 15, Article III of R.A. No. 6425, as amended. Penalty As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683.48 The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No. 765949 further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging fromP20,000.00 to P30,000.00" to "reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million". On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved. The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment. We agree. In People v. Doroja,50 we held: In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x. And, since "reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect to the accused, have, as to him, a retroactive effect",51 the penalty imposed by the trial court upon petitioner is proper. Consequently, the Court sustains the penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial court upon petitioner, the same being more favorable to him. WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006 Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CR-H.C. No. 01459 are AFFIRMED. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 163267 May 5, 2010

In a Resolution8 dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended the reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw Information9 was filed but it was denied by the trial court in an Order10 dated March 26, 1996, viz: Acting on the "Motion to Withdraw Information" filed by State Prosecutor Aida Macapagal on the ground that [there exists] no probable cause to indict the accused, the Information having been already filed in Court, the matter should be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is hereby denied. Let the arraignment of the accused proceed. When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued. Version of the Prosecution

TEOFILO EVANGELISTA, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive possession or the subjection of the thing to the owners control.1 This Petition for Review on Certiorari2 assails the October 15, 2003 Decision3 of the Court of Appeals (CA) in CA-G.R. CR No. 21805 which affirmed the January 23, 1998 Decision4 of the Regional Trial Court (RTC) of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,5 as amended, as well as the April 16, 2004 Resolution which denied petitioners Motion for Reconsideration. Factual Antecedents In an Information6 dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as follows: That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously have in his possession, custody and control the following items: 1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine; 2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines; 3. Nineteen (19) 9mm bullets. without the corresponding permit or license from competent authority.

In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner. Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where the firearms and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated. In open court, Acierto identified the firearms and ammunitions. During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel in Dubai. Upon inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office11 nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but his effort yielded no record to show that the firearms were legally purchased. Among the documents Bustos had gathered during his investigation were the Arrival Endorsement Form12 and Customs Declaration Form.13 A referral letter14 was prepared endorsing the matter to the Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms in Angola. SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO, upon verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification15 to that effect which he identified in court as Exhibit "A". After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence,16 the resolution of which was deferred pending submission of petitioners evidence. 17 Version of the Defense

CONTRARY TO LAW. After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding of A Preliminary Investigation. 7 The RTC granted the motion and, accordingly, the State Prosecutor conducted the preliminary investigation. The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as follows:

x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was being detained as he was found in possession of firearms; that if said passenger will not be able to board the airplane, he would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of PAL would accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the firearms and the passenger, herein appellant, so that the latter could leave Dubai. The firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport authorities. Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager in Dubai, the prosecution and the defense agreed and stipulated on the following points: 1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions were found in the luggage of a Filipino passenger coming from Angola going to the Philippines; 2. That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in command of PAL Flight 657; 3. That the subject firearms [were] turned over at Dubai; 4. That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin Nadurata who has already testified; 5. That [these are] the same firearms involved in this case. 18 Ruling of the Regional Trial Court On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty (20) Years. The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.19 On April 4, 1997, petitioner filed a Motion for New Trial20 which the RTC granted.21 Forthwith, petitioner took the witness stand narrating his own version of the incident as follows: On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated him and forced

him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to the policemen in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he denied ownership of the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. He declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the Duty Free area for his flight going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign a Customs Declaration Form without reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA where he was investigated. During the investigation, he was not represented by counsel and was forced to accept ownership of the guns. He denied ownership of the guns and the fact that he admitted having bought the same in Angola. Ruling of the Regional Trial Court After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive portion of the Decision dated January 23, 1998 reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00. The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.22 Ruling of the Court of Appeals On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the stipulations during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that Capt. Naduratas custody during t he flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession. Petitioner moved for reconsideration23 but it was denied by the appellate court in its April 16, 2004 Resolution. Hence, this petition. Issues Petitioner assigns the following errors: a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. 1866, Illegal Possession of Firearms.

b. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged against him. c. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime. d. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.24 We find the appeal devoid of merit. At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme Court. 25 In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to reevaluate the credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we are inclined to delve into the merits of the present petition. In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in custody and possession of any firearm or ammunition when he arrived in the Philippines. Thus, the conclusion of the appellate court that he was in constructive possession of the subject firearms and ammunitions is erroneous. We are not persuaded. As correctly found by the CA: Appellants argument that he was never found in possession of the subject firearms and ammunitions within Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn, turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof, however, appellants signature on the Customs Declaration Form, which contains the entry "2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE," proves that he was the one who brought the guns to Manila. While appellant claims that he signed the Customs Declaration Form without reading it because of his excitement, however, he does not claim that he was coerced or persuaded in affixing his signature thereon. The preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Moreover, it cannot be said that appellant had already been arrested when he signed the Customs Declaration Form. He was merely escorted by Special Agent Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for investigation. Consequently, appellant was in constructive possession of the subject firearms. As held in People v. Dela Rosa, the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. Animus possidendi is a state of mind. As such, what goes on into the mind of the accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession.

Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30, 1996, testified that he accepted custody of the firearms and of appellant in order that the latter, who was being detained in Dubai for having been found in possession of firearms, would be released from custody. In other words, Capt. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant. 26 We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory questioning by the trial court: Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on your flight to Manila, is that correct? A: Yes, your honor. Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will bring the guns and ammunitions with you? Is that the condition of the Dubai Police? A: Yes, your honor. Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and this arrangement was made by the PAL Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor, who interceded in his behalf with the Dubai Police for his flight in the Philippines.27 To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made.28 No such controversion is extant on record. Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the excuse that he was excited. Hardly can we accept such pretension. We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody. The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs requirement which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Petitioner was among those passengers. Compliance with the constitutional procedure on custodial investigation is, therefore, not applicable in this case. Moreover, it is improbable that the customs police were the ones who filled out the declaration form. As will be noted, it provides details that only petitioner could have possibly known or supplied. Even assuming that there was prior accomplishment of the form which contains incriminating details, petitioner could have easily taken precautionary measures by not affixing his signature thereto. Or he could have registered his objection thereto especially when no life threatening acts were being employed against him upon his arrival in the country. Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in constructive possession of subject firearms and ammunitions.

Emphasis was also given on the stipulations and admissions made during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items. Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a crime within the Philippines. 1avvphi1 Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.29 In order for the courts to acquire jurisdiction in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.30 Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in the Philippines. And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said firearms. It bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of license to possess the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm. Since it has been shown that petitioner was already in the Philippines when he was found in possession of the subject firearms and determined to be without any authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines. Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this case, the information specifically and categorically alleged that on or about January 30, 1996 petitioner was in possession, custody and control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory within the jurisdiction of the trial court. In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may be well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership of the firearms. Furthermore, there is no record of any criminal case having been filed against petitioner in Dubai in connection with the discovered firearms. Since there is no pending criminal case when he left Dubai, it stands to reason that there was no crime committed in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.31 Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a preliminary investigation. Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul32 that once a

complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar Team Entertainment, Inc v. Judge How33 we held: It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case. Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to be conducted. In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner possessed, albeit constructively, the subject f irearms and ammunition when he arrived in the Philippines on January 30, 1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered would have altered the outcome of the case. In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements in People v. Eling34 to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject firearms and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by petitioner when he entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not appear in the list of registered firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond reasonable doubt the second element.35 A final point. Republic Act (RA) No. 829436 took effect on June 6, 1997 or after the commission of the crime on January 30, 1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is concerned. Section 1 of PD 1866, as amended by RA 8294 provides: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as affirmed by the CA is proper.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 21805 affirming the January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty of imprisonment of six years and one day to eight years and to pay a fine of P30,000.00 is AFFIRMED. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 189155 September 7, 2010

In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen Thousand Pesos (P15,000.00) in cash, journal, digital camera with memory card, laptop computer, external hard disk, IPOD,8 wristwatch, sphygmomanometer, stethoscope and medicines. 9 After doing survey work on 19 May 2009, petitioner and her companions, Juanito Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to rest in the house of one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat,Barangay Kapanikian, La Paz, Tarlac.10 At around 1:30 in the afternoon, however, petitioner, her companions and Mr. Paolo were startled by the loud sounds of someone banging at the front door and a voice demanding that they open up. 11 Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside and ordered petitioner and her companions to lie on the ground face down. 12 The armed men were all in civilian clothes and, with the exception of their leader, were also wearing bonnets to conceal their faces.13 Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on her and tied her hands.14 At this juncture, petitioner saw the other armed men herding Carabeo and Jandoc, already blindfolded and taped at their mouths, to a nearby blue van. Petitioner started to shout her name.15 Against her vigorous resistance, the armed men dragged petitioner towards the vanbruising her arms, legs and knees.16 Once inside the van, but before she can be blindfolded, petitioner was able to see the face of one of the armed men sitting beside her.17The van then sped away. After about an hour of traveling, the van stopped.18 Petitioner, Carabeo and Jandoc were ordered to alight.19After she was informed that she is being detained for being a member of the Communist Party of the Philippines-New Peoples Army (CPP-NPA), petitioner was separated from her companions and was escorted to a room that she believed was a jail cell from the sound of its metal doors.20 From there, she could hear the sounds of gunfire, the noise of planes taking off and landing and some construction bustle.21 She inferred that she was taken to the military camp of Fort Magsaysay in Laur, Nueva Ecija.22 What followed was five (5) straight days of interrogation coupled with torture.23 The thrust of the interrogations was to convince petitioner to abandon her communist beliefs in favor of returning to "the fold."24 The torture, on the other hand, consisted of taunting, choking, boxing and suffocating the petitioner.25 Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds even in her sleep.26 Petitioner was only relieved of her blindfolds when she was allowed to take a bath, during which she became acquainted with a woman named "Rose" who bathed her. 27 There were also a few times when she cheated her blindfold and was able to peek at her surroundings.28 Despite being deprived of sight, however, petitioner was still able to learn the names of three of her interrogators who introduced themselves to her as "Dex," "James" and "RC." 29 "RC" even told petitioner that those who tortured her came from the "Special Operations Group," and that she was abducted because her name is included in the "Order of Battle." 30 On 25 May 2009, petitioner was finally released and returned to her uncles house in Quezon City.31 Before being released, however, the abductors gave petitioner a cellular phone with a SIM32 card, a slip of paper containing an e-mail address with password,33 a plastic bag containing biscuits and books,34 the handcuffs used on her, a blouse and a pair of shoes.35 Petitioner was also sternly warned not to report the incident to the group Karapatan or something untoward will happen to her and her family.36

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS, MELISSA C. ROXAS, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S. IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N. BANGIT, PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY THE NAME[S] DEX, RC AND ROSE, Respondents. DECISION PEREZ, J.: At bench is a Petition For Review on Certiorari1 assailing the Decision2 dated 26 August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA a petition that was commenced jointly under the Rules on the Writ of Amparo (Amparo Rule) and Habeas Data (Habeas Data Rule). In its decision, the Court of Appeals extended to the petitioner, Melissa C. Roxas, the privilege of the writs of amparo and habeas data but denied the latters prayers for an inspection order, production order and return of specified personal belongings. The fallo of the decision reads: WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby grants Petitioner the privilege of the Writ of Amparo and Habeas Data. Accordingly, Respondents are enjoined to refrain from distributing or causing the distribution to the public of any records in whatever form, reports, documents or similar papers relative to Petitioners Melissa C. Roxas, and/or Melissa Roxas; alleged ties to the CPP -NPA or pertinently related to the complained incident. Petitioners prayers for an inspection order, producti on order and for the return of the specified personal belongings are denied for lack of merit. Although there is no evidence that Respondents are responsible for the abduction, detention or torture of the Petitioner, said Respondents pursuant to their legally mandated duties are, nonetheless, ordered to continue/complete the investigation of this incident with the end in view of prosecuting those who are responsible. Respondents are also ordered to provide protection to the Petitioner and her family while in the Philippines against any and all forms of harassment, intimidation and coercion as may be relevant to the grant of these reliefs.3 We begin with the petitioners allegations. Petitioner is an American citizen of Filipino descent.4 While in the United States, petitioner enrolled in an exposure program to the Philippines with the group Bagong Alyansang Makabayan-United States of America (BAYAN-USA) of which she is a member.5 During the course of her immersion, petitioner toured various provinces and towns of Central Luzon and, in April of 2009, she volunteered to join members of BAYAN-Tarlac6 in conducting an initial health survey in La Paz, Tarlac for a future medical mission.7

Sometime after her release, petitioner continued to receive calls from RC via the cellular phone given to her.37Out of apprehension that she was being monitored and also fearing for the safety of her family, petitioner threw away the cellular phone with a SIM card. Seeking sanctuary against the threat of future harm as well as the suppression of any existing government files or records linking her to the communist movement, petitioner filed a Petition for the Writs of Amparo and Habeas Data before this Court on 1 June 2009. 38 Petitioner impleaded public officials occupying the uppermost echelons of the military and police hierarchy as respondents, on the belief that it was government agents who were behind her abduction and torture. Petitioner likewise included in her suit "Rose," "Dex" and "RC." 39 The Amparo and Habeas Data petition prays that: (1) respondents be enjoined from harming or even approaching petitioner and her family; (2) an order be issued allowing the inspection of detention areas in the 7th Infantry Division, Fort Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce documents relating to any report on the case of petitioner including, but not limited to, intelligence report and operation reports of the 7th Infantry Division, the Special Operations Group of the Armed Forces of the Philippines (AFP) and its subsidiaries or branch/es prior to, during and subsequent to 19 May 2009; (4) respondents be ordered to expunge from the records of the respondents any document pertinent or connected to Melissa C. Roxas, Melissa Roxas or any name which sounds the same; and (5) respondents be ordered to return to petitioner her journal, digital camera with memory card, laptop computer, external hard disk, IPOD, wristwatch, sphygmomanometer, stethoscope, medicines and her P15,000.00 cash.40 In a Resolution dated 9 June 2009, this Court issued the desired writs and referred the case to the Court of Appeals for hearing, reception of evidence and appropriate action. 41 The Resolution also directed the respondents to file their verified written return. 42 On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the Writs 43 on behalf of the public officials impleaded as respondents. We now turn to the defenses interposed by the public respondents. The public respondents label petitioners alleged abduction and torture as "stage managed." 44 In support of their accusation, the public respondents principally rely on the statement of Mr. Paolo, as contained in the Special Report45 of the La Paz Police Station. In the Special Report, Mr. Paolo disclosed that, prior to the purported abduction, petitioner and her companions instructed him and his two sons to avoid leaving the house.46 From this statement, the public respondents drew the distinct possibility that, except for those already inside Mr. Paolos house, nobody else has any way of knowing where petitioner and her companions were at the time they were supposedly abducted.47 This can only mean, the public respondents concluded, that if ever there was any "abduction" it must necessarily have been planned by, or done with the consent of, the petitioner and her companions themselves.48 Public respondents also cited the Medical Certificate49 of the petitioner, as actually belying her claims that she was subjected to serious torture for five (5) days. The public respondents noted that while the petitioner alleges that she was choked and boxed by her abductorsinflictions that could have easily produced remarkable bruisesher Medical Certificate only shows abrasions in her wrists and knee caps.50 For the public respondents, the above anomalies put in question the very authenticity of petitioners alleged abduction and torture, more so any military or police involvement therein. Hence, public respondents conclude that the claims of abduction and torture was no more than a charade fabricated by the petitioner to put the government in bad light, and at the same time, bring great media mileage to her and the group that she represents. 51

Nevertheless, even assuming the abduction and torture to be genuine, the public respondents insist on the dismissal of the Amparo and Habeas Data petition based on the following grounds: (a) as against respondent President Gloria Macapagal-Arroyo, in particular, because of her immunity from suit,52 and (b) as against all of the public respondents, in general, in view of the absence of any specific allegation in the petition that they had participated in, or at least authorized, the commission of such atrocities.53 Finally, the public respondents posit that they had not been remiss in their duty to ascertain the truth behind the allegations of the petitioner.54 In both the police and military arms of the government machinery, inquiries were set-up in the following manner: Police Action Police authorities first learned of the purported abduction around 4:30 oclock in the afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel came to the La Paz Municipal Police Station to report the presence of heavily armed men somewhere in Barangay Kapanikian.55 Acting on the report, the police station launched an initial investigation.56 The initial investigation revolved around the statement of Mr. Paolo, who informed the investigators of an abduction incident involving three (3) personslater identified as petitioner Melissa Roxas, Juanito Carabeo and John Edward Jandoc who were all staying in his house.57 Mr. Paolo disclosed that the abduction occurred around 1:30 oclock in the afternoon, and was perpetrated by about eight (8) heavily armed men who forced their way inside his house.58 Other witnesses to the abduction also confirmed that the armed men used a dark blue van with an unknown plate number and two (2) Honda XRM motorcycles with no plate numbers.59 At 5:00 oclock in the afternoon of 19 May 2009, the investigators sent a Flash Message to the different police stations surrounding La Paz, Tarlac, in an effort to track and locate the van and motorcycles of the suspects. Unfortunately, the effort yielded negative results.60 On 20 May 2009, the results of the initial investigation were included in a Special Report 61 that was transmitted to the Tarlac Police Provincial Office, headed by public respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public respondent Supt. Lacadin, in turn, informed the Regional Police Office of Region 3 about the abduction.62 Follow-up investigations were, at the same time, pursued.63 On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of the Regional Police Office for Region 3, caused the creation of Special Investigation Task GroupCAROJAN (Task Group CAROJAN) to conduct an in-depth investigation on the abduction of the petitioner, Carabeo and Jandoc.64 Task Group CAROJAN started its inquiry by making a series of background examinations on the victims of the purported abduction, in order to reveal the motive behind the abduction and, ultimately, the identity of the perpetrators.65 Task Group CAROJAN also maintained liaisons with Karapatan and the Alliance for Advancement of Peoples Rightsorganizations trusted by petitionerin the hopes of obtaining the latters participation in the ongoing investigations.66 Unfortunately, the letters sent by the investigators requesting for the availability of the petitioner for inquiries were left unheeded.67 The progress of the investigations conducted by Task Group CAROJAN had been detailed in the reports68 that it submitted to public respondent General Jesus Ame Verzosa, the Chief of the Philippine National Police. However, as of their latest report dated 29 June 2009, Task Group

CAROJAN is still unable to make a definitive finding as to the true identity and affiliation of the abductorsa fact that task group CAROJAN attributes to the refusal of the petitioner, or any of her fellow victims, to cooperate in their investigative efforts.69 Military Action Public respondent Gilbert Teodoro, the Secretary of National Defense, first came to know about the alleged abduction and torture of the petitioner upon receipt of the Resolution of this Court directing him and the other respondents to file their return.70 Immediately thereafter, he issued a Memorandum Directive71 addressed to the Chief of Staff of the AFP, ordering the latter, among others, to conduct an inquiry to determine the validity of the accusation of military involvement in the abduction.72 Acting pursuant to the Memorandum Directive, public respondent General Victor S. Ibrado, the AFP Chief of Staff, sent an AFP Radio Message73 addressed to public respondent Lieutenant General Delfin N. Bangit (Lt. Gen. Bangit), the Commanding General of the Army, relaying the order to cause an investigation on the abduction of the petitioner.74 For his part, and taking cue from the allegations in the amparo petition, public respondent Lt. Gen. Bangit instructed public respondent Major General Ralph A. Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry Division of the Army based in Fort Magsaysay, to set in motion an investigation regarding the possible involvement of any personnel assigned at the camp in the purported abduction of the petitioner.75 In turn, public respondent Maj. Gen. Villanueva tapped the Office of the Provost Marshal (OPV) of the 7th Infantry Division, to conduct the investigation.76 On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation Report77 detailing the results of its inquiry. In substance, the report described petitioners allegations as "opinionated" and thereby cleared the military from any involvement in her alleged abduction and torture.78 The Decision of the Court of Appeals In its Decision, the Court of Appeals gave due weight and consideration to the petitioners version that she was indeed abducted and then subjected to torture for five (5) straight days. The appellate court noted the sincerity and resolve by which the petitioner affirmed the contents of her affidavits in open court, and was thereby convinced that the latter was telling the truth. 80 On the other hand, the Court of Appeals disregarded the argument of the public respondents that the abduction of the petitioner was "stage managed," as it is merely based on an unfounded speculation that only the latter and her companions knew where they were staying at the time they were forcibly taken.81 The Court of Appeals further stressed that the Medical Certificate of the petitioner can only affirm the existence of a true abduction, as its findings are reflective of the very injuries the latter claims to have sustained during her harrowing ordeal, particularly when she was handcuffed and then dragged by her abductors onto their van. 82 The Court of Appeals also recognized the existence of an ongoing threat against the security of the petitioner, as manifested in the attempts of "RC" to contact and monitor her, even after she was released.83 This threat, according to the Court of Appeals, is all the more compounded by the failure of the police authorities to identify the material perpetrators who are still at large.84 Thus, the appellate court extended to the petitioner the privilege of the writ of amparo by directing the public respondents to afford protection to the former, as well as continuing, under the norm of extraordinary diligence, their existing investigations involving the abduction. 85
79

The Court of Appeals likewise observed a transgression of the right to informational privacy of the petitioner, noting the existence of "records of investigations" that concerns the petitioner as a suspected member of the CPP-NPA.86 The appellate court derived the existence of such records from a photograph and video file presented in a press conference by party-list representatives Jovito Palparan (Palparan) and Pastor Alcover (Alcover), which allegedly show the petitioner participating in rebel exercises. Representative Alcover also revealed that the photograph and video came from a female CPP-NPA member who wanted out of the organization. According to the Court of Appeals, the proliferation of the photograph and video, as well as any form of media, insinuating that petitioner is part of the CPP-NPA does not only constitute a violation of the right to privacy of the petitioner but also puts further strain on her already volatile security. 87 To this end, the appellate court granted the privilege of the writ of habeas data mandating the public respondents to refrain from distributing to the public any records, in whatever form, relative to petitioners alleged ties with the CPP-NPA or pertinently related to her abduction and torture.88 The foregoing notwithstanding, however, the Court of Appeals was not convinced that the military or any other person acting under the acquiescence of the government, were responsible for the abduction and torture of the petitioner.89 The appellate court stressed that, judging by her own statements, the petitioner merely "believed" that the military was behind her abduction. 90 Thus, the Court of Appeals absolved the public respondents from any complicity in the abduction and torture of petitioner.91 The petition was likewise dismissed as against public respondent President Gloria Macapagal-Arroyo, in view of her immunity from suit.92 Accordingly, the petitioners prayers for the return of her personal belongings were denied.93 Petitioners prayers for an inspection order and production order also met the same fate.94 Hence, this appeal by the petitioner. AMPARO A. Petitioner first contends that the Court of Appeals erred in absolving the public respondents from any responsibility in her abduction and torture.95 Corollary to this, petitioner also finds fault on the part of Court of Appeals in denying her prayer for the return of her personal belongings.96 Petitioner insists that the manner by which her abduction and torture was carried out, as well as the sounds of construction, gun-fire and airplanes that she heard while in detention, as these were detailed in her two affidavits and affirmed by her in open court, are already sufficient evidence to prove government involvement.97 Proceeding from such assumption, petitioner invokes the doctrine of command responsibility to implicate the high-ranking civilian and military authorities she impleaded as respondents in her amparo petition.98 Thus, petitioner seeks from this Court a pronouncement holding the respondents as complicit in her abduction and torture, as well as liable for the return of her belongings.99 Command Responsibility in Amparo Proceedings It must be stated at the outset that the use by the petitioner of the doctrine of command responsibility as the justification in impleading the public respondents in her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command responsibility is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition.100

The case of Rubrico v. Arroyo,101 which was the first to examine command responsibility in the context of an amparo proceeding, observed that the doctrine is used to pinpoint liability. Rubrico notes that:102 The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."103 In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, 104foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators105 (as opposed to crimes he ordered). (Emphasis in the orginal, underscoring supplied) Since the application of command responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo proceeding. The obvious reason lies in the nature of the writ itself: The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty or security.106 While the principal objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal killing or threats thereof had transpiredthe writ does not, by so doing, fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law.107 The rationale underpinning this peculiar nature of an amparo writ has been, in turn, clearly set forth in the landmark case of The Secretary of National Defense v. Manalo:108 x x x The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. 109(Emphasis supplied) It must be clarified, however, that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleadednot actually on the basis of command responsibilitybut rather on the ground of their responsibility, or at least accountability. In Razon v. Tagitis,110 the distinct, but interrelated concepts of responsibility and accountability were given special and unique significations in relation to an amparo proceeding, to wit: x x x Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.

Responsibility of Public Respondents At any rate, it is clear from the records of the case that the intent of the petitioner in impleading the public respondents is to ascribe some form of responsibility on their part, based on her assumption that they, in one way or the other, had condoned her abduction and torture.111 To establish such assumption, petitioner attempted to show that it was government agents who were behind her ordeal. Thus, the petitioner calls attention to the circumstances surrounding her abduction and torturei.e., the forcible taking in broad daylight; use of vehicles with no license plates; utilization of blindfolds; conducting interrogations to elicit communist inclinations; and the infliction of physical abusewhich, according to her, is consistent with the way enforced disappearances are being practiced by the military or other state forces. 112 Moreover, petitioner also claims that she was held inside the military camp Fort Magsaysaya conclusion that she was able to infer from the travel time required to reach the place where she was actually detained, and also from the sounds of construction, gun-fire and airplanes she heard while thereat.113 We are not impressed. The totality of the evidence presented by the petitioner does not inspire reasonable conclusion that her abductors were military or police personnel and that she was detained at Fort Magsaysay. First. The similarity between the circumstances attending a particular case of abduction with those surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated such abduction. We opine that insofar as the present case is concerned, the perceived similarity cannot stand as substantial evidence of the involvement of the government. In amparo proceedings, the weight that may be accorded to parallel circumstances as evidence of military involvement depends largely on the availability or non-availability of other pieces of evidence that has the potential of directly proving the identity and affiliation of the perpetrators. Direct evidence of identity, when obtainable, must be preferred over mere circumstantial evidence based on patterns and similarity, because the former indubitably offers greater certainty as to the true identity and affiliation of the perpetrators. An amparo court cannot simply leave to remote and hazy inference what it could otherwise clearly and directly ascertain. In the case at bench, petitioner was, in fact, able to include in her Offer of Exhibits,114 the cartographic sketches115 of several of her abductors whose faces she managed to see. To the mind of this Court, these cartographic sketches have the undeniable potential of giving the greatest certainty as to the true identity and affiliation of petitioners abductors. Unfortunately for the petitioner, this potential has not been realized in view of the fact that the faces described in such sketches remain unidentified, much less have been shown to be that of any military or police personnel. Bluntly stated, the abductors were not proven to be part of either the military or the police chain of command. Second. The claim of the petitioner that she was taken to Fort Magsaysay was not adequately established by her mere estimate of the time it took to reach the place where she was detained and by the sounds that she heard while thereat. Like the Court of Appeals, We are not inclined to take the estimate and observations of the petitioner as accurate on its face not only because they were made mostly while she was in blindfolds, but also in view of the fact that she was a mere sojourner in the Philippines, whose familiarity with Fort Magsaysay and the travel time required to reach it is in itself doubtful.116 With nothing else but obscure observations to support it, petitioners claim that she was taken to Fort Magsaysay remains a mere speculation.

In sum, the petitioner was not able to establish to a concrete point that her abductors were actually affiliated, whether formally or informally, with the military or the police organizations. Neither does the evidence at hand prove that petitioner was indeed taken to the military camp Fort Magsaysay to the exclusion of other places. These evidentiary gaps, in turn, make it virtually impossible to determine whether the abduction and torture of the petitioner was in fact committed with the acquiescence of the public respondents. On account of this insufficiency in evidence, a pronouncement of responsibility on the part of the public respondents, therefore, cannot be made. Prayer for the Return of Personal Belongings This brings Us to the prayer of the petitioner for the return of her personal belongings. In its decision, the Court of Appeals denied the above prayer of the petitioner by reason of the failure of the latter to prove that the public respondents were involved in her abduction and torture.117 We agree with the conclusion of the Court of Appeals, but not entirely with the reason used to support it. To the mind of this Court, the prayer of the petitioner for the return of her belongings is doomed to fail regardless of whether there is sufficient evidence to hold public respondents responsible for the abduction of the petitioner. In the first place, an order directing the public respondents to return the personal belongings of the petitioner is already equivalent to a conclusive pronouncement of liability. The order itself is a substantial relief that can only be granted once the liability of the public respondents has been fixed in a full and exhaustive proceeding. As already discussed above, matters of liability are not determinable in a mere summary amparo proceeding.118 But perhaps the more fundamental reason in denying the prayer of the petitioner, lies with the fact that a persons right to be restituted of his property is already subsumed under the general rubric of property rightswhich are no longer protected by the writ of amparo.119 Section 1 of the Amparo Rule,120 which defines the scope and extent of the writ, clearly excludes the protection of property rights. B. The next error raised by the petitioner is the denial by the Court of Appeals of her prayer for an inspection of the detention areas of Fort Magsaysay.121 Considering the dearth of evidence concretely pointing to any military involvement in petitioners ordeal, this Court finds no error on the part of the Court of Appeals in denying an inspection of the military camp at Fort Magsaysay. We agree with the appellate court that a contrary stance would be equivalent to sanctioning a "fishing expedition," which was never intended by the Amparo Rule in providing for the interim relief of inspection order.122 Contrary to the explicit position123 espoused by the petitioner, the Amparo Rule does not allow a "fishing expedition" for evidence. An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision. 124 A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. While the Amparo Rule does not require that the place to be inspected be identified with clarity and precision, it is, nevertheless, a minimum for the issuance of an inspection order that the supporting allegations of a party be sufficient in itself, so as to make a prima facie case. This, as was shown above, petitioner failed to do.

Since the very estimates and observations of the petitioner are not strong enough to make out a prima facie case that she was detained in Fort Magsaysay, an inspection of the military camp cannot be ordered. An inspection order cannot issue on the basis of allegations that are, in themselves, unreliable and doubtful. HABEAS DATA As earlier intimated, the Court of Appeals granted to the petitioner the privilege of the writ of habeas data, by enjoining the public respondents from "distributing or causing the distribution to the public any records in whatever form, reports, documents or similar papers" relative to the petitioners "alleged ties with the CPP-NPA or pertinently related to her abduction and torture." Though not raised as an issue in this appeal, this Court is constrained to pass upon and review this particular ruling of the Court of Appeals in order to rectify, what appears to Us, an error infecting the grant. For the proper appreciation of the rationale used by the Court of Appeals in granting the privilege of the writ of habeas data, We quote hereunder the relevant portion125 of its decision: Under these premises, Petitioner prayed that all the records, intelligence reports and reports on the investigations conducted on Melissa C. Roxas or Melissa Roxas be produced and eventually expunged from the records. Petitioner claimed to be included in the Governments Order of Battle under Oplan Bantay Laya which listed political opponents against whom false criminal charges were filed based on made up and perjured information. Pending resolution of this petition and before Petitioner could testify before Us, Ex-army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the Alliance for Nationalism and Democracy party-list held a press conference where they revealed that they received an information from a female NPA rebel who wanted out of the organization, that Petitioner was a communist rebel. Alcover claimed that said information reached them thru a letter with photo of Petitioner holding firearms at an NPA training camp and a video CD of the training exercises. Clearly, and notwithstanding Petitioners denial that she was the person in said video, there were records of other investigations on Melissa C. Roxas or Melissa Roxas which violate her right to privacy. Without a doubt, reports of such nature have reasonable connections, one way or another, to petitioners abduction where she claimed she had been subjected to cruelties and dehumanizing acts which nearly caused her life precisely due to allegation of her alleged membership in the CPP-NPA. And if said report or similar reports are to be continuously made available to the public, Petitioners security and privacy will certainly be in danger of being violated or transgressed by persons who have strong sentiments or aversion against members of this group. The unregulated dissemination of said unverified video CD or reports of Petitioners alleged ties with the CPP-NPA indiscriminately made available for public consumption without evidence of its authenticity or veracity certainly violates Petitioners right to privacy which must be protected by this Court. We, thus, deem it necessary to grant Petitioner the privilege of the Writ of Habeas Data. (Emphasis supplied). The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals. 126 The writ operates to protect a persons right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends. Needless to state, an indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim.127 This, in the case at bench, the petitioner failed to do.

The main problem behind the ruling of the Court of Appeals is that there is actually no evidence on record that shows that any of the public respondents had violated or threatened the right to privacy of the petitioner. The act ascribed by the Court of Appeals to the public respondents that would have violated or threatened the right to privacy of the petitioner, i.e., keeping records of investigations and other reports about the petitioners ties with the CPP -NPA, was not adequately provenconsidering that the origin of such records were virtually unexplained and its existence, clearly, only inferred by the appellate court from the video and photograph released by Representatives Palparan and Alcover in their press conference. No evidence on record even shows that any of the public respondents had access to such video or photograph. In view of the above considerations, the directive by the Court of Appeals enjoining the public respondents from "distributing or causing the distribution to the public any records in whatever form, reports, documents or similar papers" relative to the petiti oners "alleged ties with the CPPNPA," appears to be devoid of any legal basis. The public respondents cannot be ordered to refrain from distributing something that, in the first place, it was not proven to have. Verily, until such time that any of the public respondents were found to be actually responsible for the abduction and torture of the petitioner, any inference regarding the existence of reports being kept in violation of the petitioners right to privacy becomes farfetched, and premature. For these reasons, this Court must, at least in the meantime, strike down the grant of the privilege of the writ of habeas data. DISPOSITION OF THE CASE Our review of the evidence of the petitioner, while telling of its innate insufficiency to impute any form of responsibility on the part of the public respondents, revealed two important things that can guide Us to a proper disposition of this case. One, that further investigation with the use of extraordinary diligence must be made in order to identify the perpetrators behind the abduction and torture of the petitioner; and two, that the Commission on Human Rights (CHR), pursuant to its Constitutional mandate to "investigate all forms of human rights violations involving civil and political rights and to provide appropriate legal measures for the protection of human rights,"128must be tapped in order to fill certain investigative and remedial voids. Further Investigation Must Be Undertaken Ironic as it seems, but part and parcel of the reason why the petitioner was not able to adduce substantial evidence proving her allegations of government complicity in her abduction and torture, may be attributed to the incomplete and one-sided investigations conducted by the government itself. This "awkward" situation, wherein the very persons alleged to be involved in an enforced disappearance or extralegal killing are, at the same time, the very ones tasked by law to investigate the matter, is a unique characteristic of these proceedings and is the main source of the "evidentiary difficulties" faced by any petitioner in any amparo case. 129 Cognizant of this situation, however, the Amparo Rule placed a potent safeguardrequiring the "respondent who is a public official or employee" to prove that no less than "extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty."130 Thus, unless and until any of the public respondents is able to show to the satisfaction of the amparo court that extraordinary diligence has been observed in their investigations, they cannot shed the allegations of responsibility despite the prevailing scarcity of evidence to that effect. With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was not fully observed in the conduct of the police and military investigations in the case at bar.

A perusal of the investigation reports submitted by Task Group CAROJAN shows modest effort on the part of the police investigators to identify the perpetrators of the abduction. To be sure, said reports are replete with background checks on the victims of the abduction, but are, at the same time, comparatively silent as to other concrete steps the investigators have been taking to ascertain the authors of the crime. Although conducting a background investigation on the victims is a logical first step in exposing the motive behind the abductionits necessity is clearly outweighed by the need to identify the perpetrators, especially in light of the fact that the petitioner, who was no longer in captivity, already came up with allegations about the motive of her captors. Instead, Task Group CAROJAN placed the fate of their investigations solely on the cooperation or non-cooperation of the petitionerwho, they claim, was less than enthusiastic in participating in their investigative efforts.131 While it may be conceded that the participation of the petitioner would have facilitated the progress of Task Group CAROJANs investigation, this Court believes that the formers reticence to cooperate is hardly an excuse for Task Group CAROJAN not to explore other means or avenues from which they could obtain relevant leads.132 Indeed, while the allegations of government complicity by the petitioner cannot, by themselves, hold up as adequate evidence before a court of lawthey are, nonetheless, a vital source of valuable investigative leads that must be pursued and verified, if only to comply with the high standard of diligence required by the Amparo Rule in the conduct of investigations. Assuming the non-cooperation of the petitioner, Task Group CAROJANs reports still failed to explain why it never considered seeking the assistance of Mr. Jesus Paolo who, along with the victims, is a central witness to the abduction. The reports of Task Group CAROJAN is silent in any attempt to obtain from Mr. Paolo, a cartographic sketch of the abductors or, at the very least, of the one who, by petitioners account, was not wearing any mask. 1avvphi1 The recollection of Mr. Paolo could have served as a comparative material to the sketches included in petitioners offer of exhibits that, it may be pointed out, were prepared under the direction of, and first submitted to, the CHR pursuant to the latters independent investigation on the abduction and torture of the petitioner.133 But as mentioned earlier, the CHR sketches remain to be unidentified as of this date. In light of these considerations, We agree with the Court of Appeals that further investigation under the norm of extraordinary diligence should be undertaken. This Court simply cannot write finis to this case, on the basis of an incomplete investigation conducted by the police and the military. In a very real sense, the right to security of the petitioner is continuously put in jeopardy because of the deficient investigation that directly contributes to the delay in bringing the real perpetrators before the bar of justice. To add teeth to the appellate courts directive, however, We find it fitting, nay, necessary to shift the primary task of conducting further investigations on the abduction and torture of the petitioner upon the CHR.134 We note that the CHR, unlike the police or the military, seems to enjoy the trust and confidence of the petitioneras evidenced by her attendance and participation in the hearings already conducted by the commission.135 Certainly, it would be reasonable to assume from such cooperation that the investigations of the CHR have advanced, or at the very least, bears the most promise of advancing farther, in terms of locating the perpetrators of the abduction, and is thus, vital for a final resolution of this petition. From this perspective, We also deem it just and appropriate to relegate the task of affording interim protection to the petitioner, also to the CHR. Hence, We modify the directive of the Court of the Appeals for further investigation, as follows 1.) Appointing the CHR as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to

identify the persons described in the cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other leads relevant to petitioners abduction and torture. 2.) Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing investigation of the CHR, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioners abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws. 3.) Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision. 4.) Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and to (b) provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court. Accordingly, this case must be referred back to the Court of Appeals, for the purposes of monitoring compliance with the above directives and determining whether, in light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible or, at least, accountable. After making such determination, the Court of Appeals shall submit its own report with recommendation to this Court for final action. The Court of Appeals will continue to have jurisdiction over this case in order to accomplish its tasks under this decision. WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby render a decision: 1.) AFFIRMING the denial of the petitioners prayer for the return of her personal belongings; 2.) AFFIRMING the denial of the petitioners prayer for an inspection of the detention areas of Fort Magsaysay. 3.) REVERSING the grant of the privilege of habeas data, without prejudice, however, to any modification that this Court may make on the basis of the investigation reports and recommendations submitted to it under this decision. 4.) MODIFYING the directive that further investigation must be undertaken, as follows a. APPOINTING the Commission on Human Rights as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the Commission on Human Rights shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the persons described in the cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other leads relevant to petitioners abduction and torture.

b. DIRECTING the incumbent Chief of the Philippine National Police, or his successor, and the incumbent Chief of Staff of the Armed Forces of the Philippines, or his successor, to extend assistance to the ongoing investigation of the Commission on Human Rights, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioners abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws. c. Further DIRECTING the incumbent Chief of the Philippine National Police, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision. d. Further DIRECTING the Commission on Human Rights (a) to furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and (b) to provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court. 5.) REFERRING BACK the instant case to the Court of Appeals for the following purposes: a. To MONITOR the investigations and actions taken by the PNP, AFP, and the CHR; b. To DETERMINE whether, in light of the reports and recommendations of the CHR, the abduction and torture of the petitioner was committed by persons acting under any of the public respondents; and on the basis of this determination c. To SUBMIT to this Court within ten (10) days from receipt of the report and recommendation of the Commission on Human Rightsits own report, which shall include a recommendation either for the DISMISSAL of the petition as against the public respondents who were found not responsible and/or accountable, or for the APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE AMPARO AND HABEAS DATA RULES, TO BE UNDERTAKEN as against those found responsible and/or accountable. Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies. Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-G.R. SP No. 00036-WRA that are not contrary to this decision are AFFIRMED. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice