EN BANC
The writ of habeas corpus may be granted by the
[G.R. No. 14639. March 25, 1919.]
ZACARIAS VILLAVICENCIO ET AL., petitioners, vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHT OF DOMICILE; LIBERTY;
HABEAS CORPUS; CONTEMPT. One hundred and seventy
women, who had lived in the segregated district for women of ill
repute in the city of Manila, were by orders of the Mayor of the
city of Manila and the chief of police of that city isolated from
society and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were
forcibly hustled on board steamers for transportation to regions
unknown. No law, order, or regulation authorized the Mayor of
the city of Manila or the chief of the police of that city to force
citizens of the Philippine Islands to change their domicile from
Manila to another locality. Held: That the writ of habeas corpus
was properly granted, and that the Mayor of the city of Manila
who was primarily responsible for the deportation, is in contempt
of court for his failure to comply with the order of the court.
2. ID.; ID.; ID.; ID. The remedies of the unhappy victims of
official oppression are three: (1) Civil action; (2) criminal action,
and (3) habeas corpus. A civil action was never intended
effectively and promptly to meet a situation in which there is
restraint of liberty. That the act may be a crime and that the
person may be proceeded against is also no bar to the institution
of habeas corpus proceedings. Habeas corpus is the proper
remedy.
3. ID.; ID.; ID.; ID. These women, despite their being in a
sense lepers of society, are nevertheless not chattles, but
Philippine citizens protected by the same constitutional
guaranties as are other citizens.
4. ID.; ID. The privilege of domicile is a principle often
protected by constitutions and deeply imbedded in American
jurisprudence.
5. HABEAS CORPUS; NATURE. The writ of habeas corpus
was devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom.
6. ID.; PARTIES. Where it is impossible for a party to sign an
application for the writ of habeas corpus, it is proper for the writ
to be submitted by some person in his behalf.
7. ID.; JURISDICTION. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of
the Court of First Instance.
8. ID.; ID.
Supreme Court or any judge thereof enforcible anywhere in the
Philippine Islands.
9. ID.; ID. Whether the writ shall be made returnable before
the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the
particular circumstances.
10. ID.; RESTRAINT OF LIBERTY. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The
essential objects and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished
from voluntary, and to relieve a person therefrom if such restraint
is illegal. Any restraint which will preclude freedom of action is
sufficient.
11. ID.; ID. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been
imprisoned. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned to Manila
and released or until they freely and truly waived this right.
12. ID.; ID. The true principle should be that if the respondent
is within the jurisdiction of the court and has it in his power to
obey the order of the court, and thus to undo the wrong that he
has inflicted, he should be compelled to do so.
13. ID.; ID. Even if the party to whom the writ is addressed
has illegally parted with the custody of a person before the
application for the writ, is no reason why the writ should not
issue.
14. ID.; ID. The place of confinement is not important to the
relief if the guilty party is within the reach of process so that by
the power of the court he can be compelled to release his grasp.
15. ID.; COMPLIANCE WITH WRIT. For respondents to fulfill
the order of the court granting the writ of habeas corpus, three
courses were open: (1) They could have produced the bodies of
the persons according to the command of the writ; (2) they could
have shown by affidavit that on account of sickness or infirmity
these persons could not safely be brought before the Court; or
(3) they could have presented affidavits to show that the parties
in question or their attorney waived the right to be present.
(Code of Criminal Procedure, Sec. 87.)
16. CONTEMPT OF COURT. The power to punish for
contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should a court
invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail.
17. ID. When one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be
guilty of contempt, and must order him either imprisoned or
fined.
18. ID. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus, when he has power to do
so, is contempt committed in the face of the court.
19. GOVERNMENT OF THE PHILIPPINE ISLANDS; A
GOVERNMENT OF LAWS. The Government of the Philippine
Islands is a government of laws. The court will assist in retaining
it as a government of laws and not of men.
20. ID.; ID. No official, however high, is above the law.
21. ID.; ID. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors.
DECISION
MALCOLM, J p:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas corpus
submits for decision. While hardly to be expected to be met with
in this modern epoch of triumphant democracy, yet, after all, the
cause presents no great difficulty if there is kept in the forefront
of our minds the basic principles of popular government, and if
we give expression to the paramount purpose for which the
courts, as an independent power of such a government, were
constituted. The primary question is Shall the judiciary permit
a government of men instead of a government of laws to be set
up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor
of the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the
city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city
authorities quietly perfected arrangements with the Bureau of
Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a
guard of soldiers, At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into
patrol wagons, and placed them aboard the steamers that
awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the
impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for
a life in Mindanao. They had not been asked if they wished to
depart from that region and had neither directly nor indirectly
given their consent to the deportation. The involuntary guests
were received on board the steamers by a representative of the
Bureau of Labor and a detachment of Constabulary soldiers. The
two steamers with their unwilling passengers sailed for Davao
during the night of October 25.
The vessels reached their destination at Davao on October 29.
The women were landed and receipted for as laborers by
Francisco Sales, provincial governor of Davao, and by Feliciano
Yigo and Rafael Castillo. The governor and
the hacendero Yigo, who appear as parties in the case, had no
previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings to
these women and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of
the women married, others assumed more or less clandestine
relations with men, others went to work in different capacities,
others assumed a life unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a
member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the
same questions concerned them all, the application will be
considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the
women were illegally re- strained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for
the respondents, Lukban and Hohmann, admitted certain facts
relative to sequestration and deportation, and prayed that the
writ should not be granted because the petitioners were not
proper parties, because the action should have been begun in
the Court of First Instance for Davao, Department of Mindanao
and Sulu, because the respondents did not have any of the
women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of
Manila. According to an exhibit attached to the answer of the
fiscal, the 170 women were destined to be laborers, at good
salaries, on the hacienda of Yigo and Governor Sales. In open
court, the fiscal admitted, in answer to a question of a member of
the court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of
November 4, that directed JustoLukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and
Feliciano Yigo, anhacendero of Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty,
on December 2, 1918.
Before the date mentioned, seven of the women had returned to
Manila at their own expense. On motion of counsel for
petitioners, their testimony was taken before the clerk of the
Supreme Court sitting as commissioner. On the day named in
the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the
respondents. It has since been shown that three of those who
had been able to come back to Manila through their own efforts,
were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the
Mayor of the city of Manila to the provincial governor of Davao
and the answer thereto, and telegrams that had passed between
the Director of Labor and the attorney for that Bureau then in
Davao, and offered certain affidavits showing that the women
were contented with their life in Mindanao and did not wish to
return to Manila. Respondent Sales answered alleging that it
was not possible to fulfill the order of the Supreme Court
because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they
had married or signed contracts as laborers. Respondent Yigo
answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey
the mandate. The court, after due deliberation, on December 10,
1918, promulgated a second order, which related that the
respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and
therefore directed that those of the women not in Manila be
brought before the court by respondents Lukban, Hohmann,
Sales, and Yigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge
of first instance of Davao or the clerk of that court, renounce the
right, or unless the respondents should demonstrate some other
legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in con-
tempt of court would later be decided and the reasons for the
order announced in the final decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen, and
of the provincial governor of Davao, was taken before the clerk
of the Supreme Court sitting as commissioner and the clerk of
the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented
before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to
Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further
endeavored to account for all of the persons involved in the
habeas corpus. In sub- stance, it was stated that the
respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight
women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation free, renounced the right through sworn
statements; that fifty- nine had already returned to Manila by
other means, and that despite all efforts to find them twenty-six
could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila Jose
Rodriguez and Fernando Ordax, members of the police force of
the city of Manila, Feliciano Yigo, an hacendero of Davao,
Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court.
The city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will
now proceed to do so.
One fact, and one fact only, need be recalled these one
hundred and seventy women were isolated from society, and
then at night, without their consent and without any opportunity
to consult with friends or to defend their rights, were forcibly
hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women
left voluntarily and gladly, that such was not the case is shown by
the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of
the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question By authority of what law did the Mayor and the Chief
of Police presume to act in deporting by duress these persons
from Manila to another distant locality within the Philippine
Islands ? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of Congress. The Governor- General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and Section
733 of the Revised Ordinances of the city of Manila provide for
the conviction and punishment by a court of justice of any person
who is common prostitute. Act No. 899 authorizes the return of
any citizen of the United States, who may have been convicted
of vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination. or
establish a quarantine, or place a leprous person in the Culion
leper colony, it is done pursuant to some law or order. But one
can search in vain for any law, order, or regulation, which even
hints at the right of the Mayor of the city of Manila or the chief of
police of that city to force citizens of the Philippine Islands and
these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the
same constitutional guaranties as are other citizens to change
their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer who,
not being expressly authorized by law or regulation, compels any
person to change his residence.
In other countries, as in Spain and Japan, the privilege of
domicile is deemed so important as to be found in the Bill of
Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in
jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-
General of the Philippine Islands even the President of the
United States, who has often been said to exercise more power
than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy of motives,
render the liberty of the citizen so insecure, then the presidents
and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to
themselves such power, then any other official can do the same.
And if any official can exercise the power, then all persons would
have just as much right to do so. And if a prostitute could be sent
against her wishes and under no law from one locality to another
within the country, then officialdom can hold the same club over
the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that
"No freeman shall be taken, or imprisoned, or be disseized of
his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we pass upon him
nor condemn him, but by lawful judgment of his peers or by the
law of the land. We will sell to no man, we will not deny or defer
to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 Eng. Stat. at Large, 7.) No official, no matter
how high, is above the law. The courts are the forum which
functionate to safeguard individual liberty and to punish official
transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man
who by accepting office participates in its functions is only the
more strongly bound to submit to that supremacy, and to observe
the limitations which it imposes upon the exercise of the
authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196,
220.) "The very idea," said Justice Matthews of the same high
tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential
to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356, 370.) All this explains the motive in issuing the writ of
habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts
should permit a government of men or a government of laws to
be established in the Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest
with the parties in interest to pursue such an action, but it was
never intended effectively and promptly to meet any such
situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force
in these Islands provides:
"Any public officer not thereunto authorized by law or by
regulations of a general character in force in the Philippines who
shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the
judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand
two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized by law or
by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas." (Art. 211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has
violated this provision of law, these prosecutors will institute and
press a criminal prosecution just as vigorously as they have
defended the same official in this action. Nevertheless, that the
act may be a crime and that the persons guilty thereof can be
proceeded against, is no bar to the instant proceedings. To quote
the words of Judge Cooley in a case which will later be referred
to "It would be a monstrous anomaly in the law if to an
application by one unlawfully confined, to be restored to his
liberty, it could be a sufficient answer that the confinement was a
crime, and therefore might be continued indefinitely until the
guilty party was tried and punished therefor by the slow process
of criminal procedure. "(In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is to
set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this
instance. The fiscal has argued (1) that there is a defect in
parties petitioners, (2) that the Supreme Court should not
assume jurisdiction, and (3) that the persons in question are not
restrained of their liberty by respondents. It was finally suggested
that the jurisdiction of the Mayor and the chief of police of the city
of Manila only extends to the city limits and that perforce they
could not bring the women from Davao.
The first defense was not pressed with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way
the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It
was consequently proper for the writ to be submitted by persons
in their behalf. (Code of Criminal Procedure, Sec. 78; Code of
Civil Procedure, Sec. 527.) The law, in its zealous regard for
personal liberty, even makes it the duty of a court or judge to
grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained
of his liberty, though no application be made therefor. (Code of
Criminal Procedure, Sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked
for in the Court of First Instance of Davao or should have been
made returnable before that court. It is a general rule of good
practice that, to avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast
rule. The writ of habeas corpus may be granted by the Supreme
Court or any judge thereof enforcible anywhere in the Philippine
Islands. (Code of Criminal Procedure, Sec. 79; Code of Civil
Procedure, Sec. 526.) Whether the writ shall be made returnable
before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that
the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before
that court. On the other hand, it was shown that the petitioners
with their attorneys, and the two original respondents with their
attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that
the women might still be imprisoned or restrained of their liberty;
and it was shown that if the writ was to accomplish its purpose, it
must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the
application and then to grant the writ would have amounted to a
denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more
difficult to meet. When the writ was prayed for, says counsel, the
parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of
the mayor and the chief of police did not extend beyond the city
limits. At first blush, this is a tenable position. On closer
examination, acceptance of such dictum is found to be
perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who
handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned. Placed in
Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where
they pleased. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned to Manila
and released or until they freely and truly waived this right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and
place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold
his hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his
power to obey the order of the court and thus to undo the wrong
that he has inflicted, he should be compelled to do so. Even if
the party to whom the writ is addressed has illegally parted with
the custody of a person before the application for the writ is no
reason why the writ should not issue. If the mayor and the chief
of police, acting under no authority of law, could deport these
women from the city of Manila to Davao, these same officials
must necessarily have the same means to return them from
Davao to Manila. The respondents, within the reach of process,
may not be permitted to restrain a fellow citizen of her liberty by
forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of
liberty may not thus be easily evaded.
It must be that some such question has heretofore been
presented to the courts for decision. Nevertheless, strange as it
may seem, a close examination of the authorities fails to reveal
any analogous case. Certain decisions of respectable courts are
however very persuasive in nature.
A question came before the Supreme Court of the State of
Michigan at an early date as to whether or not a writ of habeas
corpus would issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State a minor child
under guardianship in the State, who has been and continues to
be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held
that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom
concurred Christiancy, J., held that the writ should issue. Since
the opinion of Justice Campbell was predicated to a large extent
on his conception of the English decisions, and since, as will
hereafter appear, the English courts have taken a contrary view,
only the following eloquent passages from the opinion of Justice
Cooley are quoted:
"I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .
"It would be strange indeed if, at this late day, after the
eulogiums of six centuries and a half have been expended upon
the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his
speech on the petition of right that 'Magna Charta was such a
fellow that he will have no sovereign,' and after the extension of
its benefits and securities by the petition of right, bill of rights and
habeas corpus acts, it should now be discovered that evasion of
that great clause for the protection of personal liberty, which is
the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay,
that the legislature may apply the proper remedy, as I can not
doubt they would, on the subject being brought to their
notice. . . .
"The second proposition that the statutory provisions are
confined to the case of imprisonment within the state seems
to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ
from the statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
"The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not
important to. the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where is the power of control exercised? And I am
aware of no other remedy." (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa,
193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the
subject. Thus, a child had been taken out of England by the
respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her
husband directing the defendant to produce the child. The judge
at chambers gave defendant until a certain date to produce the
child, but he did not do so. His return stated that the child before
the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it
was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M.
R., said:
"A writ of habeas corpus was ordered to issue, and was issued
on January 22. That writ commanded the defendant to have the
body of the child before a judge in chambers at the Royal Courts
of Justice immediately after the receipt of the writ, together with
the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction
of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing
of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he
is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the
question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has
been a contempt in disobeying the writ after it was issued by not
producing the child in obedience to its commands." (The
Queen vs. Barnardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law
Rep. [N.S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A
habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons,
with the cause of their detention. Davis, in his return to the writ,
stated on oath that he had purchased the negroes as slaves in
the city of Washington; that, as he believed, they were removed
beyond the District of Columbia before the service of the writ of
habeas corpus, and that they were then beyond his control and
out of his custody. The evidence tended to show that Davis had
removed the negroes because he suspected they would apply
for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce
the negroes, and Davis being present in court, and refusing to
produce them, ordered that he be committed to the custody of
the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged
in jail in Maryland. Davis produced the two negroes on the last
day of the term. (United States vs. Davis [1839], 5 Cranch C. C.,
622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883],
111 U. S., 624; Church on Habeas Corpus, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of
the defenses offered by the respondents constituted a legitimate
bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondents
complied with the two orders of the Supreme Court awarding the
writ of habeas corpus, and if it be found that they did not,
whether the contempt should be punished or be taken as
purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents
were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the city
of Manila waited until the 21st of November before sending a
telegram to the provincial governor of Davao. According to the
response of the attorney for the Bureau of Labor to the telegram
of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought
before the court on the day named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to
show ,that the parties in question or their attorney waived the
right to be present. (Code of Criminal Procedure, Sec. 87.) They
did not produce the bodies of the persons in whose behalf the
writ was granted; they did not show impossibility of performance;
and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contented with their life
in Davao, some of which have since been repudiated by the
signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated by the
fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned
at their own expense or were produced at the second hearing by
the respondents.
The court, at the time the return to its first order was made,
would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-
production of the persons were far from sufficient. The
authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must
be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said
that he was bound to use every effort to get the child back; that
he must do much more than write letters for the purpose; that he
must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the
matter; and that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other words, the
return did not show that every possible effort to produce the
women was made by the respondents. That the court forebore at
this time to take drastic action was because it did not wish to see
presented to the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good
faith and to mitigate their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in
rounding up the women, and a steamer with free transportation
to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be
influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any
particular individual is still restrained of her liberty, it can be
made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of
court Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez, and
Fernando Ordax, members of the police force of the city of
Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz,
Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised
on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of justice
must falter or fail. Nevertheless when one is commanded to
produce a certain person and does not do so, and does not offer
a valid excuse, a court must, to vindicate its authority, adjudge
the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the
body of a person in obedience to a writ of habeas corpus when
he has power to do so, is a contempt committed in the face of
the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson
[1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of
public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero
Yigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The
city fiscal, Anacleto Diaz, would seem to have done no more
than to fulfill his duty as the legal representative of the city
government. Finding him innocent of any disrespect to the court,
his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and
done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered
the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the
head of the city government, had it within his power to facilitate
the return of the unfortunate women to Manila, was
Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were
unlawful. His regard for the writ of habeas corpus issued by the
court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of Section 546 of
the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as
P400 each, which would reach to many thousands of pesos, and
in addition to deal with him as for a contempt. Some members of
the court are inclined to this stern view. It would also be possible
to find that since respondentLukban did comply substantially with
the second order of the court, he has purged his contempt of the
first order. Some members of the court are inclined to this
merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity
may be considered only as extenuating his conduct. A nominal
fine will at once command such respect without being unduly
oppressive such an amount is P100.
In resume as before stated, no further action on the writ of
habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be
in contempt of court. Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of the Supreme
Court within five days the sum of one hundred pesos (P100).
The motion of the fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los Recurridosof January
25, 1919, is granted. Costs shall be taxed against respondents.
So ordered.
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.
Arellano, C. J., Avancea and Moir, JJ., concur.
Johnson and Street, JJ., concur in the result.
||| (Villavicencio v. Lukban, G.R. No. 14639, [March 25, 1919], 39
PHIL 777-812)
SECOND DIVISION
[G.R. No. 114046. October 24, 1994.]
HONORATO GALVEZ and GODOFREDO
DIEGO, petitioners, vs. COURT OF APPEALS (17TH
DIVISION), First Asst. Provincial Prosecutor. DENNIS M.
VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE
PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON,
Camp Commander and Head of the PNP Custodial Group,
Camp Crame, Cubao, Quezon City, respondents.
DECISION
REGALADO, J p:
Submitted for resolution in the present special civil action are: (1)
the basic petition for certiorari and mandamus with a petition for
habeas corpus, to review the resolution issued by
respondent Court of Appeals, dated February 18, 1994, in CA-
G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and Supplemental
Urgent Motion 3 for Immediate Action on Petition for Habeas
Corpus; and (3) the Urgent Petition to Declare Judge Jaime N.
Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M.
Villa-Ignacio for Contempt and to Annul Proceedings (with
Immediate Prayer for another Cease and Desist Order). 4
On November 12, 1993, petitioners Honorato Galvez, the
incumbent Mayor of San Ildefonso, Bulacan, and one Godofredo
Diego were charged in three separate informations with
homicide and two counts of frustrated homicide for allegedly
shooting to death Alvin Calma Vinculado and seriously wounding
Levi Calma Vinculado and Miguel Reyes Vinculado, Jr. The
cases were raffled to the sala of Judge Felipe N. Villajuan of the
Regional Trial Court of Malolos, Bulacan, Branch 14, and
docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-
93. 5 Both accused posted their respective cash bail bonds and
were subsequently released from detention. LexLib
On November 15, 1993, Bulacan Provincial Prosecutor Liberato
L. Reyes filed a Motion to Defer Arraignment and Subsequent
Proceedings to enable him "to review the evidence on record
and determine once more the proper crimes chargeable against
the accused," 6 which was granted by Judge Villajuan in an order
dated November 16, 1993. 7 Thereafter, pursuant to Department
Order No, 369 of the Department of Justice, respondent
Prosecutor Dennis M. Villa-Ignacio was designated Acting
Provincial Prosecutor of Bulacan and was instructed to conduct a
re-investigation of the aforesaid criminal cases filed against
herein petitioners. 8
By virtue of a Manifestation with Ex-parte Motion dated
November 23, 1993 9 filed by respondent prosecutor, the
proceedings were again ordered suspended by Judge Villajuan
until after the prosecution's request for change of venue shall
have been resolved by the Supreme Court, and the preliminary
investigation being conducted by the former shall have been
terminated. 10 It appears that on December 2, 1993, private
complainants, through their counsel, Atty. Silvestre R. Bello III,
had filed with the Supreme Court a Petition for
Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-M-
93, purportedly to safeguard the lives of the victims and their
witnesses, and to prevent a miscarriage of justice. 11
On December 15, 1993, before petitioners could be arraigned in
Criminal Cases Nos. 3642-M-93 to 3644-M-93, respondent
prosecutor filed an Ex Parte Motion to Withdraw Informations in
said cases. 12 This motion was granted by Judge Villajuan also
on December 15, 1993 and the cases were considered
withdrawn from the docket of the court. 13 On the same day,
Prosecutor Villa-Ignacio filed four new informations against
herein petitioners for murder, two counts of frustrated murder,
and violation of Presidential Decree No. 1866 for illegal
possession of firearms 14 which were subsequently raffled to the
sala ofJudge Victoria Pornillos of Branch 10, Regional
Trial Court of Malolos, Bulacan and were docketed therein as
Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail having
been recommended for the crime of murder, Judge Pornillos
ordered the arrest of herein petitioners. 15 On December 23,
1993, said presiding judge issued an order setting the
arraignment of the accused for December 27, 1993. 16
On December 27, 1993, the scheduled arraignment before
Judge Pornillos was reset due to the absence of respondent
prosecutor. On even date, petitioners filed before Judge Villajuan
a Motion for Reconsideration of his order of December 15, 1993
which granted the motion to withdraw the original
informations. 17
Thereafter, a Motion to Quash the new informations for
lack of jurisdiction was filed by petitioners before Judge Pornillos
on January 3, 1994. 18 At thecourt session set for the
arraignment of petitioners on January 24, 1994, Judge Pornillos
issued an order denying the motion to quash and, at the same
time, directed that a plea of not guilty be entered for petitioners
when the latter refused to enter their plea. 19
In the meantime, and prior to the arraignment of herein
petitioners before Judge Pornillos, an order was issued on
January 20, 1994 by Judge Villajuan granting the motion for
reconsideration filed by petitioners, ordering the
reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93,
and setting the arraignment of the accused therein for February
8, 1994. 20 On said date, however, the arraignment was
suspended and, in the meanwhile, petitioners filed a petition for
certiorari, prohibition and mandamus with
respondent Court of Appeals, assailing the order dated January
24, 1994 issued by Judge Pornillos which denied petitioners'
motion to quash filed in Criminal Cases Nos. 4004-M-93 to 4007-
M-93. As earlier stated, respondent court dismissed the petition
in its questioned resolution of February 18, 1994, hence this
petition.
I. On the Main Petition
The main issue in this case involves a determination of the
set of informations under which herein petitioners should be
tried, that is, (a) the first set ofinformations for homicide and
frustrated homicide in Criminal Cases Nos. 3642-M-93 to 3644-
M-93, or (b) the subsequent informations for murder, frustrated
murder, and illegal possession of firearms in Criminal Cases
Nos. 4004-M-93 to 4007-M-93. Several corollary but equally
important issues have likewise been addressed to us for
resolution, to wit:
1. Whether the ex parte motion to withdraw the original
informations is null and void on the ground that (a) there was no
notice and hearing as required by Sections 4, 5 and 6, Rule
15 of the Rules of Court; and (b) the appropriate remedy which
should have been adopted by the prosecution was to amend the
informations by charging the proper offenses pursuant to Section
14 of Rule 110;
2. Whether the order granting the withdrawal of the original
informations was immediately final and executory;
3. Whether Judge Pornillos was correct in denying the motion to
quash and thereby acquired jurisdiction over the new
informations considering that (a) the designated public
prosecutor allegedly had no authority to file the second
set of informations; and (b) the filing thereof constituted forum
shopping; and
4. Whether the arraignment proceeding held on January 24,
1994 in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid.
We shall discuss these issues seriatim.
1. It is petitioners' submission that the prosecution's failure to
serve them a copy of the motion to withdraw the original
informations and to set said motion for hearing constitutes a
violation of their right to be informed of the proceedings against
them, as well as a violation of Sections 4, 5 and 6, Rule 15 ofthe
Rules of Court. Hence, so they contend, the ex parte motion
should be considered as a worthless scrap of paper and Judge
Villajuan had no authority to act on it. Ergo, the order granting
the same is null and void.
Petitioners advance the theory that respondent prosecutor
should have amended the original informations
instead of withdrawing the same and filing new ones. They
postulate that the principle of nolle prosequi does not apply in
this case since the withdrawal or dismissal of an information is
addressed solely to the sound and judicious
discretion of the court which has the option to grant or deny it
and the prosecution cannot impose its opinion on the court. It is
further stressed that in case there is a need to change the
nature of the offense charged, that is, from homicide to murder,
by adding the qualifying circumstance of treachery, the only legal
and proper remedy is through the filing of the corresponding
amended information; and that the withdrawal of an information
is allowed only where the new information involves a different
offense which does not include or is not included in the offense
originally charged.
Normally, an accused would not object to the dismissal of an
information against him because it is to his best interest not to
oppose the same. Contrarily, if the accused should deem such
conditional or provisional dismissal to be unjust and prejudicial to
him, he could object to such dismissal and insist that the case be
heard and decided on the merits. 21 However, considering that
in the original cases before Branch 14 of the
trial court petitioners had not yet been placed in jeopardy, and
the ex parte motion to withdraw was filed and granted before
they could be arraigned, there would be no imperative need for
notice and hearing thereof. In actuality, the real
grievance of herein accused is not the dismissal of the original
three informations but the filing of four new informations,
three of which charge graver offenses and the fourth, an
additional offense. Had these new informations not been filed,
there would obviously have been no cause for the instant
petition. Accordingly, their complaint about the supposed
procedural lapses involved in the motion to dismiss filed and
granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does
not impress us as a candid presentation of their real position.
Petitioners' contention that the dismissal of the original
informations and the consequent filing of the new ones
substantially affected their right to bail is too strained and
tenuous an argument. They would want to ignore the fact that
had the original informations been amended so as to charge the
capital offenseof murder, they still stood to likewise be
deprived of their right to bail once it was shown that the
evidence of guilt is strong. Petitioners could not be better off with
amended informations than with the subsequent ones. It really
made no difference considering that where a capital offense is
charged and the evidence ofguilt is strong, bail becomes a
matter of discretion under either an amended or a new
information.
Contrary to petitioners' submission, the absence of notice and
hearing does not divest a trial court of authority to pass on the
merits of the motion. It has been held that
"The order of the court granting the motion to dismiss despite
absence of a notice of hearing, or proof of service thereof, is
merely an irregularity in the proceedings. It cannot deprive a
competent court of jurisdiction over the case. The court still
retains its authority to pass on the merits of the motion. The
remedyof the aggrieved party in such cases is either to have the
order set aside or the irregularity otherwise cured by
the court which dismissed the complaint, or to appeal from the
dismissal and not certiorari." 22
Besides, when petitioners were given by Judge Villajuan the
opportunity to file a motion for reconsideration, even assuming
the alleged procedural infirmity in his issuance of the
order of dismissal, the same was thereby deemed cured. This is
especially so in this case since, on his order, the original
informations were reinstated in Branch 14 of the trial court.
The rule is now well settled that once a complaint or information
is filed in court any disposition of the case, whether as to its
dismissal or the conviction or the acquittal of the accused, rests
in the sound discretion of the court. Although the prosecutor
retains the direction and control of the prosecution of criminal
cases even when the case is already in court, he cannot impose
his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether
or not a criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor may
deep proper thereafter should be addressed to the court for its
consideration and approval. 23 The only qualification is that the
action of the court must not impair the substantial rights of the
accused or the right of the People to due process of law.
We reiterate once again the doctrine we enunciated and
explained in Crespo vs. Mogul, etc., et al.: 24
"Whether the accused had been arraigned or not and whether it
was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was submitted
to the Court, the Court in the exercise of its discretion may grant
the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.
xxx xxx xxx
"The rule therefore in this jurisdiction is 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 in
the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole judge on what to
do with the case before it. The determination of the case is within
its exclusive jurisdiction and competence. A motion to dismiss
the case filed by the fiscal should be addressed to the Court who
has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or
that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the
records of the investigation."
In such an instance, before a re-investigation of the case may be
conducted by the public prosecutor, the permission or
consent of the court must be secured. And, if after such re-
investigation the prosecution finds a cogent basis to withdraw
the information or otherwise cause the dismissal of the case,
such proposed course of action may be taken but shall likewise
be addressed to the sound discretion of the court. 25
It is not denied that in the present case, the court granted the
motion of respondent prosecutor for the suspension of the
proceedings until the re-investigation thereof shall have been
terminated. Thereafter, the prosecutor arrived at a finding that
petitioners should have been charged with murder, frustrated
murder, and illegal possession of firearms. This prompted him to
file an ex parte motion to withdraw the original informations for
homicide and frustrated homicide. Although the motion did not
state the reasons for the withdrawal of the informations,
nevertheless the court in the exercise of its discretion granted
the same, as a consequence of which a new set of informations
was thereafter filed and raffled to another branch of the court.
Petitioners now question the propriety of the procedure adopted
by the prosecution, insisting that an amendment, not a new
information, was required under the circumstances.
It must here be emphasized that respondent prosecutor sought,
and was subsequently granted, permission by the court to
dismiss the original informations. It cannot therefore be validly
claimed that the prosecutor exceeded his authority in
withdrawing those informations because the same bore the
imprimatur of the court. The issue is thus focused on whether or
not under the given situation the court acted correctly in
dismissing the original informations rather than ordering the
amendment thereof.
It has been observed that while the Rules of Court gives the
accused the right to move for the quashal of the information, it is
silent with respect to the right of the prosecutor to ask for a
dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules
on Criminal Procedure will show that there are only two
provisions concerning the dismissal of an information other than
on motion of the accused, namely, Section 14 of Rule 110 and
Section 11 of Rule 119. But then, it may be contended that these
rules speak of a dismissal by the court when there is a mistake in
charging the proper offense, but make no mention of a dismissal
made upon application of the prosecution. That is not necessarily
so.
It is true that Section 11, Rule 119 is virtually a
restatement of Section 14, Rule 110, providing as it does that:
"Sec. 11. When mistake has been made in charging the proper
offense. When it becomes manifest at any time before
judgment, that a mistake has been made in charging the proper
offense, and the accused cannot be convicted of the offense
charged, or of any other offense necessarily included therein, the
accused shall not be discharged, if there appears to be good
cause to detain him. In such case, the court shall commit the
accused to answer for the proper offense and dismiss the
original case upon the filing of the proper information."
(Emphasis supplied.)
Rule 119 is the rule specifically governing the trial stage where
evidence is necessarily being presented, hence the trial court is
now in a better position to conclude that manifestly the accused
cannot be convicted of the offense charged or of one that it
necessarily includes. It would primarily be the
function of thecourt to motu proprio order the dismissal of the
case and direct the filing of the appropriate information. We do
not discount the possibility of either the prosecution or the
defense initiating such dismissal and substitution at that stage,
although, from a realistic point of view, that would be a rare
situation. This provision, therefore, is more directly and
principally directed to the trial court to invest it with the requisite
authority to direct by itself the dismissal and refilingof the
informations therein contemplated.
Rule 110, on the other hand, provides the procedural
governance for the prosecution of offenses. Section 14 thereof,
quoted infra, provides in its second paragraph the procedure and
requisites for the substitution of a defective information by the
correct one. Although, just like Section 11 of Rule 119 the
permissible stage for effecting that substitution is "at any time
before judgment," unlike the latter situation it is sufficient that "it
appears . . . that a mistake has been made in charging the
proper offense, . . ." The situation under said Section 14
contemplates a longer time span, inclusive of the period from the
filing ofthe information up to and before trial. Since no evidence
has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial
judge himself but, again, realistically it will be the prosecutor who
can initially determine the same. That is why such error need not
be manifest or evident, nor is it required that such nuances as
offenses includible in the offense charged be taken into account.
It necessarily follows, therefore, that the prosecutor can and
should institute remedial measures for the dismissal of the
original information and the refiling of the correct one, otherwise
he would be recreant to his duties.
It is interesting to note that in the American jurisdiction, such
right is specifically recognized under Rule 48 (a) of the Federal
Rules of Criminal Procedure which provides that the
entry of a nolle prosequi by the Government is a permissible
right, although requiring in all cases the approval of the court in
the exercise of its judicial discretion. 27 As a matter of fact, the
prosecuting attorney is given the broad power, sole authority and
discretion to enter a nolle prosequiprovided he does not act
arbitrarily 28 and subject to the discretion of the court.
In several cases, we have also impliedly recognized the
propriety of such a procedure particularly in those instances
where the prosecution is allowed to dismiss or withdraw an
information on the ground of insufficiency of evidence. We have
even gone further by imposing upon the fiscal, as he was then
called, the duty to move for the dismissal of the information if he
is convinced that the evidence is insufficient to establish, at
least prima facie, the guilt of the accused.29
In this case now before us, what is involved is a dismissal
effected at the instance of the prosecutor by reason of a mistake
in charging the proper offense, in order that new informations
can be filed. The problem that may be posited, and should now
be resolved, is when the fiscal may be allowed to move to
dismiss an information and when he should merely move to
amend it.
Section 14 of Rule 110, which is invoked by petitioners, reads as
follows:
"Sec. 14. Amendment. The information or complaint may be
amended, in substance or form, without leave of court, at any
time before the accused pleads; and thereafter and during the
trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without
prejudice to the rights of the accused.
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a
new one charging the proper offense in accordance with Rule
119, Section 11, provided the accused would not be placed
thereby in double jeopardy, and may also require the Witnesses
to give bail for their appearance at the trial."
The first paragraph provides the rule for amendment of the
information or complaint, while the second paragraph refers to
the substitution of the information or complaint. Under the
second paragraph, the court can order the filing of another
information to charge the proper offense, provided the accused
would not be placed thereby in double jeopardy and that could
only be true if the offense proved does not necessarily include or
is not necessarily included in the offense charged in the original
information.
It has been the rule that under the first paragraph of Section 14,
Rule 110, the amendment of the information may also be made
even if it may result in altering the nature of the charge so long
as it can be done without prejudice to the rights of the accused.
Hence, in the case of Dimalibot vs. Salcedo, 30 the accused
therein were originally charged with homicide and were released
on bail. However, the then provincial fiscal, after a review of the
affidavits of the witnesses for the prosecution, discovered that
the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage ofsuperior
strength, and employing means to weaken the defense of the
victim. Consequently, an amended information for murder was
filed against the accused who were ordered re-arrested without
the amount of bail being fixed, the new charge being a capital
offense.
The Court ruled therein that the amendment was proper,
pursuant to Section 13, Rule 106 of the 1940
Rules of Court (now Section 14, Rule 110 of the 1985 Rules on
Criminal Procedure), thus:
"Here these rules properly apply, since it is undisputed that the
herein accused were not yet arraigned before the
competent court when the complaint for homicide was amended
so as to charge the crime of murder. Upon the authority of said
rules, the amendment could therefore be made even as to
substance in order that the proper charge may be made. The
claim that such amendment can only refer to
matters of specification affecting the elements constituting the
crime is not correct, for there is nothing in the rule to show that
the nature of the amendment should only be limited to
matters of specification. The change may also be made even if it
may result in altering the nature of the charge so long as it can
be done without prejudice to the rights of the defendant."
Be that as it may, it is quite plausible under Section 14 of Rule
110 that, instead of an amendment, an information for homicide
may also be dismissed before the accused pleads, to give way
to the filing of a new information for murder. This may be
deduced from the pronouncement of the Court in the aforecited
case of Dimalibot, to wit:
"This clearly appears from the second part of Section 13 of Rule
106 which says that, if it appears before judgment that a mistake
has been made in charging the proper offense, the court may
dismiss the original information and order the filing of a new one
provided the defendant may not be placed in double jeopardy. If
a new information may be ordered at any time before judgment
no reason is seen why the court may not order the
amendment of the information if its purpose is to make it
conformable to the true nature of the crime committed. . . ."
In the subsequent case of Teehankee, Jr. vs Madayag, et
al., 31 however, Section 14 of Rule 110 was clarified to mean as
follows:
"It may accordingly be posited that both amendment and
substitution of the information may be made before or after the
defendant pleads, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes,
while substitution necessarily involves a substantial change from
the original charge;
2. Amendment before plea has been entered can be effected
without leave of court, but substitution of information must be
with leave of court as the original information has to be
dismissed;
3. Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the
plea of the accuse; in substitution of information, another
preliminary investigation is entailed and the accused has to
plead anew to the new information; and
4. An amended information refers to the same offense charged
in the original information or to an offense which necessarily
includes or is necessarily included in the original charge, hence
substantial amendments to the information after the plea has
been taken cannot be made over the objection of the accused,
for if the original information would be withdrawn, the accused
could invoke double jeopardy. On the other hand, substitution
requires or presupposes that the new information involves a
different offense which does not include or is not necessarily
included in the original charge, hence the accused cannot claim
double jeopardy.
"In determining, therefore, whether there should be an
amendment under the first paragraph of Section 14, Rule 110, or
a substitution of information under the second paragraph thereof,
the rule is that where the second information involves the same
offense, or an offense which necessarily includes or is
necessarily included in the first information, an
amendment of the information is sufficient; otherwise, where the
new information charges an offense which is distinct and
different from that initially charged, a substitution is in order."
In any event, we are inclined to uphold the propriety of the
withdrawal of the original informations, there having been no
grave abuse of discretion on the part of the court in granting the
motion and, more importantly, in consideration of the fact that the
motion to withdraw was filed and granted before herein
petitioners were arraigned, hence before they were placed in
jeopardy. Thus, even if a substitution was made at such stage,
petitioners cannot validly claim double jeopardy, which is
precisely the evil sought to be prevented under the rule on
substitution, for the simple reason that no first jeopardy had as
yet attached. Consequently, we hold that although the offenses
charged under the three new informations necessarily include
those charged under the original informations, the
substitution of informations was not a fatal error. A contrary
ruling, to paraphrase from our former pronouncements, would
sacrifice substantial justice for formal nuances on the
altar of procedural technicalities. Furthermore, petitioners' right
to speedy trial was never violated since the new informations
were filed immediately after the motion to withdraw the original
informations was granted.
2. The controversy over the jurisdiction of Judge Pornillos to
entertain and act upon the new informations for murder,
frustrated murder and illegal possession of firearms, is grounded
on three points of disagreement.
Firstly, it is argued that the new informations were prematurely
filed considering that the order granting the withdrawal of the
original informations had not yet become final and executory and
that, as a matter of fact, the same was subsequently
reconsidered and the case reinstated by Judge Villajuan.
Therefore, so petitioners postulate, Judge Pornillos could not
acquire jurisdiction over the same offense involving the same
incident and the same accused.
Secondly, petitioners contend that the dismissal of the original
informations and the filing of new ones which were raffled to
another branch of the courtconstituted forum shopping, and was
tainted with malice considering the indecent haste with which the
motion to withdraw the informations was filed, the order granting
the same was issued, and the new informations were filed,
all of which took place on the same day. Pursuant to the doctrinal
ruling that the courtfirst acquiring jurisdiction excludes the other
courts, it is theorized that the cognizance of the case taken by
Judge Villajuan barred Judge Pornillos from assuming
jurisdiction thereover.
Finally, the designation of respondent Prosecutor Dennis Villa-
Ignacio (who was then First Assistant Provincial
Prosecutor of Pasig, Rizal) as Acting Provincial
Prosecutor of Bulacan was arbitrary and without any justifiable
reason. It follows, therefore, so petitioners vigorously argue, that
in the absence ofsuch authority, the informations should be
considered null and void by reason of which Judge Pornillos did
not acquire jurisdiction over the same.
On the other hand, respondents question the
propriety of petitioners' filing of a petition for certiorari prohibition
and mandamus in the Court of Appealsagainst the order of the
lower court denying petitioners' motion to quash, claiming that
the proper remedy was to proceed to trial on the merits and
thereafter raise on appeal, as special defenses, the grounds
invoked in the motion to quash. LLpr
It is a general rule that a nolle prosequi or dismissal entered
before the accused is placed on trial and before he is called on
to plead is not equivalent to an acquittal, 32 and does not bar a
subsequent prosecution for the same offense. 33 It is not a final
disposition of the case. 34 Rather, it partakes of the nature of a
nonsuit or discontinuance in a civil suit and leaves the matter in
the same condition in which it was before the
commencement of the prosecution. 35
A dismissal is different from an acquittal. An order of dismissal
which is actually an acquittal is immediately final and cannot be
reconsidered. 36Furthermore, an acquittal is always based on
the merits, that is, the defendant is acquitted because the
evidence does not show that defendant's guilt is beyond
reasonable doubt; but a dismissal does not decide the case on
the merits or that the defendant is not guilty. Dismissals
terminate the proceedings, either because the court is not
a court of competent jurisdiction, or the evidence does not show
that the offense was committed within the territorial
jurisdiction of thecourt, or the complaint or information is not
valid or sufficient in form and substance. 37 For dismissal to be a
bar under double jeopardy, it must have the effectof acquittal.
All these go to show, therefore, that the dismissal of Criminal
Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an
acquittal of herein petitioners. Consequently, the same did not
immediately become final, hence petitioners could still file a
motion for the reconsideration thereof. Moreover, such dismissal
does not constitute a proper basis for a claim of double
jeopardy. 38 Since jeopardy had not yet attached, herein
petitioners were not prejudiced by the filing ofthe new
informations even though the order of dismissal in the prior case
had not yet become final. Neither did it affect the
jurisdiction of the court in the subsequent case. LexLib
In American legal practice, where a motion for an order of nolle
prosequi is made, the only power to deny the motion would be
based on failure of the district attorney to judiciously exercise his
discretion. 39 In most cases, the motion will be readily granted
and should not be refused unless the court has some knowledge
that it is based on an improper reason or a corrupt motive. But
such a motion to dismiss will not also be approved unless
the court is satisfied that the administration of justice requires
that the prosecution be ended, or if there appears to be a clear
violation of the law. 40 Whatever may be the reason therefor, a
denial of the motion to withdraw should not be construed as a
denigration of the authority of the special prosecutor to control
and direct the prosecution of the case 41 , since the
disposition of the case already rests in the sound
discretion of the court.
This brings us to the question as to whether or not an
order of dismissal may be subsequently set aside and the
information reinstated. Again, in American jurisprudence, the
authorities differ somewhat as to whether a nolle prosequi may
be set aside and the cause reinstated. 42 Some cases hold that
thenolle prosequi may be recalled and that the accused may be
tried on the same information 43 , but before it can be retraced,
set aside, cancelled, or struck off, the permission or
assent of the court must be had and obtained, and such
cancellation or retraction must be duly entered. According to
other authorities, however, the entry of an unconditional nolle
prosequi, not on the ground that the information is insufficient on
its face, is an end to the prosecution of that information, and
such nolle prosequi cannot afterward by vacated and further
proceedings had in that case. 44
Still in some cases, it has been held that a nolle prosequi may be
set aside by leave of court, so as to reinstate proceedings on the
information, or unless it was entered by mistake. 45 In our
jurisdiction, we follow the rule which allows an order of dismissal
to be set aside by leave of court. In one case, it was held that in
the absence of any statutory provision to the contrary,
the court may, in the interest of justice, dismiss a criminal case
provisionally, that is, without prejudice to reinstating it before the
order becomes final or to the subsequent filing of a new
information for the offense. 46
The rule that in cases of concurrent jurisdiction the court first
acquiring jurisdiction will retain it to the end to the
exclusion of other tribunals, is not to be given unyielding effect in
all cases and it does not apply where the jurisdiction of the
first court has come to an end in any legal way, such as by nolle
prosequi. 47The rule on exclusions is intended to prevent
confusion and conflicts in jurisdiction and to prevent a person
from being twice tried for the same offense, but no accused has
a vested right to be tried in any particular court of concurrent
jurisdiction; and when one court of concurrent jurisdiction
voluntarily relinquishes it by a nolle prosequi or dismissal of the
case, there can be no legal or logical reason for preventing the
other court from proceeding. 48 With much more reason will this
rule apply where only branches of the same court, and not
different courts, are involved in the jurisdictional conflict. LLpr
There was no forum shopping in the lower court with respect to
the case involved. While the procedure adopted by the
prosecution was somewhat cumbersome, it was not in bad faith
and, accordingly, it did not affect the legality of the proceedings.
There is no showing, and petitioners failed to prove otherwise,
that the assignment by raffle of the new informations to another
branch of the same court was intended to prejudice herein
petitioners, or to place them under less favorable circumstances,
or to find a court which would act favorably on the prosecution's
case.
The authority of the special prosecutor appointed by the
Secretary of Justice to sign and file informations has long been
recognized in this jurisdiction and it has been held that such
information cannot be quashed on that account. There is nothing
so sacrosanct in the signing of complaints,
holding of investigations, and conducting prosecutions that only
an officer appointed by the President or one expressly
empowered by law be permitted to assume these
functions. 49And any irregularity in the appointment does not
necessarily invalidate the same if he may be considered a de
facto officer. 50
Of course, where the person who signed the information was
disqualified from appointment to such position, the information is
invalid and the court does not acquire jurisdiction to try the
accused thereon. 51 Such is not, however, the situation
obtaining in the case at bar. It will be noted that respondent
prosecutor was designated by the Secretary of Justice to handle
the re-investigation and prosecution of the case against
petitioners pursuant to Department Order No. 369. Petitioners
failed to show any irregularity in the issuance of said directive.
At any rate, the power of supervision and control vested in the
Secretary of Justice under Presidential Decree No. 1275 had
been broadened beyond the confines of the old law, that
is, Section 1679 of the Revised Administrative Code, wherein the
power of the Secretary was then limited only to certain instances.
Pertinently, in Aguinaldo, et al. vs. Domagas, et al., 52 we said:
"The Court notes, however, that Department of Justice Order No.
85 was issued pursuant to, among others, P.D. No. 1275 issued
on 11 April 1978 which provides:
'Section 1. Creation of the National Prosecution Service;
Supervision and Control of the Secretary of Justice. There is
hereby created and established a National Prosecution Service
under the supervision and control of the Secretary of Justice, to
be composed of the Prosecution Staff in the Office of the
Secretary of Justice and such number of Regional State
Prosecution Offices, and Provincial and City Fiscal's Offices as
are hereinafter provided, which shall be primarily responsible for
the investigation and prosecution of all cases involving
violations of penal laws.
'The power of supervision and control vested in the
Secretary of Justice vested in the Secretary of Justice includes
the authority to act directly on any matter within the
jurisdiction of the Prosecution Staff, the Regional State
Prosecution Office or the Office of the Provincial or City Fiscal
and to review, modify or revoke any decision or action of the
Chief of said staff or office.'
"The power of supervision and control vested in the
Secretary of Justice under P.D. No. 1275 had thus been
broadened beyond the confines of the old law, i.e., Section
1679 of the Revised Administrative Code of 1917, where the
power of the Secretary of Justice to designate acting fiscals or
prosecutors to handle a particular case was limited to instances
'when a provincial fiscal shall be disqualified by personal interest
to act in a particular case or when for any reason he shall be
unable, or shall fail to discharge any of the duties of his position.'
Indeed, the limitation upon which petitioners rely no longer
subsisted under P.D. No. 1275.
"Having been duly designated in accordance with law, the
panel of prosecutors had complete control of the investigation
and prosecution of the case. . . ."
3. Petitioners similarly dispute the legality of their arraignment on
January 24, 1994, when Judge Pornillos entered a plea of not
guilty for them after they refused to plead, without furnishing
them copies of the information with the list of witnesses, after
merely reading the informations against them and asking
whether they understood the same, which were allegedly in
palpable violation of Section 1, Rule 116. Petitioners aver that
they were requesting for the suspension of the arraignment as
they wanted to have a final copy of the order of January 24,
1994 which was merely read in open court, and to take the
necessary steps to question the same by way of a motion for
reconsideration or an appeal.
In criminal cases, it is the duty of the accused, in addition to the
other pleas authorized by law, to plead whether he is guilty or
not of the crime charged. In that way and in that way only can an
issue be created upon which the trial shall proceed. 53 Section
1(c) of Rule 116 is quite explicit that where the accused refuses
to plead, a plea of not guilty shall be entered for him. Hence,
under such mandatory language, if the accused refuses to plead,
the court must enter a plea of not guilty. The words are so plain
and unambiguous that no construction is necessary. It actually
calls for a literal application thereof. Any explanation or defense
which petitioners would want to invoke can be properly raised
during the trial, but they cannot refuse to enter their plea.
Nonetheless, the alleged defect in their arraignment on January
24, 1994 is deemed to have been cured when they were again
arraigned on February 18, 1994 with the
assistance ofcounsel de oficio, and the information was read to
them in the vernacular.
In conclusion, considering that Branch 10 of the same
trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-
93 legally acquired jurisdiction over the new informations which
we have likewise declared valid, petitioners may be prosecuted
thereunder.
II. On the Petition for Habeas Corpus
This petition is predicated mainly on petitioners' asseveration
that the court which issued the warrant for their arrest had no
jurisdiction over the case, hence their detention should be
deemed illegal.
We have earlier declared that Branch 10 of the
trial court acquired jurisdiction over the new set of informations.
Consequently, the warrant of arrest issued on the bases of said
informations filed therein and the subsequent detention of herein
petitioners pursuant thereto are valid. What instead has to be
resolved is the corollary issue of whether the petition for habeas
corpus was properly filed together with their present petition for
certiorari and mandamus.
The writs of habeas corpus and certiorari may be ancillary to
each other where necessary to give effect to the supervisory
powers of the higher courts. A writ of habeas corpus reaches the
body and the jurisdictional matters, but not the record. A
writ of certiorari reaches the record but not the body. Hence, a
writof habeas corpus may be used with the writ of certiorari for
the purpose of review. 54 However, habeas corpus does not lie
where the petitioner has the remedyof appeal or certiorari
because it will not be permitted to perform the functions of a
writ of error or appeal for the purpose of reviewing mere errors or
irregularities in the proceedings of a court having jurisdiction
over the person and the subject matter. 55
Neither can we grant the writ at this stage since a writ of habeas
corpus is not intended as a substitute for the functions of the
trial court. In the absence ofexceptional circumstances, the
orderly course of trial should be pursued and the usual remedies
exhausted before the writ may be invoked. Habeas corpus is not
ordinarily available in advance of trial to determine jurisdictional
questions that may arise. 56 It has to be an exceptional case for
the writ of habeas corpus to be available to an accused before
trial. 57 In the absence of special circumstances requiring
immediate action, a court will not grant the writ and discharge
the prisoner in advance of a determination of his case
in court. 58 In the case under consideration, petitioners have
dismally failed to adduse any justification or exceptional
circumstance which would warrant the grant of the writ, hence
their petition therefor has to be denied.
In addition, a petition for habeas corpus is not the appropriate
vehicle for asserting a right to bail or vindicating its denial. In the
case of Enrile vs. Salazar, etc., et al., 59 we held that:
"The criminal case before the respondent Judge was the normal
venue for invoking the petitioner's right to have provisional liberty
pending trial and judgment. The original jurisdiction to grant or
deny bail rested with said respondent. The correct course was
for petitioner to invoke that jurisdiction by filing a petition to be
admitted to bail, claiming a right to bail per se by reason of the
weakness of the evidence against him. Only after that remedy
was denied by the trialcourt should the review
jurisdiction of this Court have been invoked, and even then, not
without first applying to the Court of Appeals if appropriate relief
was also available there."
III. On the Motion to Cite for Contempt
The records show that on February 24, 1994, this Court issued a
temporary restraining order, pursuant to its resolution in
Administrative Matter No. 94-1-13-RTC which is a petition for
change of venue filed by the Vinculados, requiring Judges Felipe
N. Villajuan and Victoria Villalon-Pornillos to cease and desist
from hearing the criminal cases involving herein petitioners
which were pending before them. 60
Subsequently, another resolution was issued in said cases,
dated March 1, 1994, with the following directive:
"ACCORDINGLY, without prejudice to the final determination as
to which of the two (2) sets of information will be upheld or
prevail, the Executive Judge ofthe Regional
Trial Court of Malolos, Bulacan is hereby directed to transfer all
the aforementioned criminal cases filed against Mayor
Honorato Galvez et al. now in the Regional
Trial Court of Malolos, Bulacan, to the Executive Judge,
Regional Trial Court of Quezon City for raffle as one (a) single
case among its branches and for the branch concerned, after
raffle, to proceed with all deliberate dispatch after the issues
raised in CA-G.R. SP No. 33261 have been resolved with
finality." 61
As a consequence, the seven informations which were docketed
as Criminal Cases Nos. Q-94-55481 to Q-94-55487 were
assigned to and are now pending trial on the merits before
Branch 103 of the Regional Trial Court of Quezon City, presided
over by Judge Jaime N. Salazar, Jr. Petitioners now assert that
Judge Salazar and Prosecutor Villa-Ignacio proceeded with the
trial of the cases despite the aforestated directives in the above
cited resolutions. We find no merit in the motion to cite them for
contempt.
The records reveal that there was a manifestation dated May 31,
1994 62 filed by the Solicitor General wherein the latter
manifested his conformity to the agreement made between the
prosecution and the defense before Judge Salazar, the pertinent
part of which agreement is as follows:
"1. During the hearing on May 26, 1994, the prosecution, through
Senior State Prosecutor Dennis Villa-Ignacio, the defense
through Justice Alfredo Lazaro, and this Honorable Court agreed
that the trial in these cases shall proceed on condition that: (a)
the defense shall not be deemed to have waived any issue or
objection it has raised before the Supreme Court in G.R. No.
114046; and (b) that the trial shall also be without prejudice to
whatever decision and resolution the Supreme Court may render
in the case before it."
Counsel for petitioners, retired Justice Alfredo Lazaro, takes
issue with said agreement on the pretension that the same is not
the true agreement of the parties, but he failed to state what they
actually agreed upon. Withal, the resolutions of this Court in the
petition for change of venue, as well as the cease and desist
order issued therein, are clearly directed against the two
aforenamed regional trial judges in Malolos, Bulacan. By no
stretch of the imagination can we interpret the same to include
Judge Jaime N. Salazar, Jr. of Quezon City. LexLib
For that matter, the issues involved in this petition for certiorari
do not necessarily require a suspension of the proceedings
before the present trial courtconsidering that the main petition
hinges only on a determination of which set of informations shall
constitute the indictments against petitioners and for which
charges they shall stand trial. Whichever set of informations
prevails, the evidence of the prosecution and defense will more
or less be the same and can be utilized for the charges therein.
Hence, no cogent reason exists for the suspension of the
proceedings before the court below.
As a final word, while it may well be that both sets of information
validly exist for the nonce, to allow both of them to subsist will
only serve to confuse and complicate the proceedings in the
cases therein. Brushing aside procedural technicalities,
therefore, it becomes exigent to now consider and declare the
four informations for murder, frustrated murder and illegal
possession of firearms as having amended and superseded the
original three informations for homicide and frustrated homicide,
there being no substantial rights of herein petitioners which may
be affected thereby. Correspondingly, the three informations for
homicide and frustrated homicide should be ordered withdrawn
from the Quezon City trial court's docket.
WHEREFORE, judgment is hereby rendered DISMISSING the
petition for certiorari and mandamus together with the petition for
habeas corpus; DENYING, for lack of merit, the motion to cite
respondent judge and prosecutor for contempt and to annul
proceedings; and ORDERING the withdrawal and
invalidation ofthe three informations for homicide and frustrated
homicide against petitioners from the docket of Branch
103 of the Regional Trial Court of Quezon City.
SO ORDERED.
||| (Galvez v. Court of Appeals, G.R. No. 114046, [October 24,
1994])
EN BANC
[G.R. No. 184467. June 19, 2012.]
EDGARDO NAVIA, 1 RUBEN DIO, 2 and ANDREW
BUISING, petitioners, vs. VIRGINIA PARDICO, for and in
behalf and in representation of
BENHUR V.PARDICO, respondent.
DECISION
DEL CASTILLO, J p:
For the protective writ of amparo to issue in enforced
disappearance cases, allegation and proof that the persons
subject thereof are missing are not enough. It must also be
shown by the required quantum of proof that their disappearance
was carried out by, "or with the authorization, support or
acquiescence of, [the government] or a political organization,
followed by a refusal to acknowledge [the same or] give
information on the fate or whereabouts of [said missing]
persons." 3
This petition for review on certiorari 4 filed in relation to Section
19 of A.M. No. 07-9-12-SC 5 challenges the July 24, 2008
Decision 6 of the Regional Trial Court (RTC), Branch 20, Malolos
City which granted the Petition for Writ of Amparo 7 filed by
herein respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation 8 (Asian Land) arrived at the house of
Lolita M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand
Royale Subdivision, Barangay Lugam, Malolos City. The arrival
of the vehicle awakened Lolita's son, Enrique Lapore (Bong),
and Benhur Pardico (Ben), who were then both staying in her
house. When Lolita went out to investigate, she saw two
uniformed guards disembarking from the vehicle. One of them
immediately asked Lolita where they could find her son Bong.
Before Lolita could answer, the guard saw Bong and told him
that he and Ben should go with them to the security office of
Asian Land because a complaint was lodged against them for
theft of electric wires and lamps in the subdivision. 9
Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale
Subdivision. 10 The supervisor of the security guards, petitioner
Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties' respective versions
diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office
because they received a report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she saw Bong and
Ben removing a lamp from a post in said subdivision. 11 The
reported unauthorized taking of the lamp was relayed thru radio
to petitioners Ruben Dio (Dio) and Andrew Buising (Buising),
who both work as security guards at the Asian Land security
department. Following their department's standard operating
procedure, Dio and Buising entered the report in their logbook
and proceeded to the house of Mrs. Emphasis. It was there
where Dio and Buising were able to confirm who the suspects
were. They thus repaired to the house of Lolita where Bong and
Ben were staying to invite the two suspects to their office. Bong
and Ben voluntarily went with them. TDAHCS
At the security office, Dio and Buising interviewed Bong and Ben.
The suspects admitted that they took the lamp but clarified that
they were only transferring it to a post nearer to the house of
Lolita. 12 Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation.
Since there was no complainant, Navia ordered the release of
Bong and Ben. Bong then signed a statement to the effect that
the guards released him without inflicting any harm or injury to
him. 13 His mother Lolita also signed the logbook below an entry
which states that she will never again harbor or entertain Ben in
her house. Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion
though, Navia allowed Ben to leave. Ben also affixed his
signature on the logbook to affirm the statements entered by the
guards that he was released unharmed and without any
injury. 14
Upon Navia's instructions, Dio and Buising went back to the
house of Lolita to make her sign the logbook as witness that they
indeed released Ben from their custody. Lolita asked Buising to
read aloud that entry in the logbook where she was being asked
to sign, to which Buising obliged. Not contented, Lolita put on her
reading glasses and read the entry in the logbook herself before
affixing her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation 15 from the
Malolos City Police Station requesting them to appear thereat on
April 17, 2008 relative to the complaint of
Virginia Pardico (Virginia) about her missing husband Ben. In
compliance with the invitation, all three petitioners appeared at
the Malolos City Police Station. However, since Virginia was not
present despite having received the same invitation, the meeting
was reset to April 22, 2008. 16
On April 22, 2008, Virginia attended the investigation. Petitioners
informed her that they released Ben and that they have no
information as to his present whereabouts.17 They assured
Virginia though that they will cooperate and help in the
investigation of her missing husband. 18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited.
They were unlawfully arrested, shoved into the Asian Land
vehicle and brought to the security office for investigation. Upon
seeing Ben at the security office, Navia lividly grumbled "Ikaw na
naman?" 19 and slapped him while he was still seated. Ben
begged for mercy, but his pleas were met with a flurry of
punches coming from Navia hitting him on different parts of his
body. 20 Navia then took hold of his gun, looked at Bong, and
said, "Wala kang nakita at wala kang narinig, papatayin ko na si
Ben." 21
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark
and his father had long been asking the administrator of Grand
Royale Subdivision to install a lamp to illumine their area. But
since nothing happened, he took it upon himself to take a lamp
from one of the posts in the subdivision and transfer it to a post
near their house. However, the lamp Bong got was no longer
working. Thus, he reinstalled it on the post from which he took it
and no longer pursued his plan. 22
Later on, Lolita was instructed to sign an entry in the guard's
logbook where she undertook not to allow Ben to stay in her
house anymore. 23 Thereafter, Navia again asked Lolita to sign
the logbook. Upon Lolita's inquiry as to why she had to sign
again, Navia explained that they needed proof that they released
her son Bong unharmed but that Ben had to stay as the latter's
case will be forwarded to the barangay. Since she has poor
eyesight, Lolita obligingly signed the logbook without reading it
and then left with Bong. 24 At that juncture, Ben grabbed Bong
and pleaded not to be left alone. However, since they were afraid
of Navia, Lolita and Bong left the security office at once leaving
Ben behind. 25 EHCcIT
Moments after Lolita and Bong reached their house, Buising
arrived and asked Lolita to sign the logbook again. Lolita asked
Buising why she had to sign again when she already twice
signed the logbook at the headquarters. Buising assured her that
what she was about to sign only pertains to Bong's release.
Since it was dark and she has poor eyesight, Lolita took
Buising's word and signed the logbook without, again, reading
what was written in it. 26
The following morning, Virginia went to the Asian Land security
office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before.
She then looked for Ben, asked around, and went to
the barangay. Since she could not still find her husband, Virginia
reported the matter to the police.
In the course of the investigation on Ben's disappearance, it
dawned upon Lolita that petitioners took advantage of her poor
eyesight and naivete. They made her sign the logbook as a
witness that they already released Ben when in truth and in fact
she never witnessed his actual release. The last time she saw
Ben was when she left him in petitioners' custody at the security
office. 27
Exasperated with the mysterious disappearance of her husband,
Virginia filed a Petition for Writ of Amparo 28 before the RTC of
Malolos City. Finding the petition sufficient in form and
substance, the amparo court issued an Order 29 dated June 26,
2008 directing, among others, the issuance of a writ
of amparo and the production of the body of Ben before it on
June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme
Court Resolution [in] A.M. No. 07-[9]-12-SC, also known as
"The Rule on the Writ of Amparo", let a writ of amparo be issued,
as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising of the Asian Land Security Agency to produce
before the Court the body of aggrieved party Benhur Pardico, on
Monday, June 30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition
on the aforementioned date and time, and DIRECTING the
[petitioners] to personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-
two (72) hours from service of the writ, a verified written return
with supporting affidavits which shall, among other things,
contain the following:
a) The lawful defenses to show that the [petitioners] did not
violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine
the fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved
party.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their
behalf, under pain of contempt, from threatening, harassing or
inflicting any harm to [respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately serve personally
on the [petitioners], at their address indicated in the petition,
copies of the writ as well as this order, together with copies of the
petition and its annexes. 30
A Writ of Amparo 31 was accordingly issued and served on the
petitioners on June 27, 2008. 32 On June 30, 2008, petitioners
filed their Compliance 33 praying for the denial of the petition for
lack of merit. CHIaTc
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the
sworn statements 34 of Lolita and Enrique which the two
affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged
Decision 35 granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ
of amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the
disappearance of [Benhur] Pardico, utilizing in the process, as
part of the investigation, the documents forming part of the
records of this case;
(b) To hereby direct the NBI to extend to the family of
[Benhur] Pardico and the witnesses who testified in this case
protection as it may deem necessary to secure their safety and
security; and
(c) To hereby direct the Office of the Provincial Prosecutor of
Bulacan to investigate the circumstances concerning the legality
of the arrest of [Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this
case, and take whatever course/s of action as may be
warranted.
Furnish immediately copies of this decision to the NBI, through
the Office of Director Nestor Mantaring, and to the Provincial
Prosecutor of Bulacan.
SO ORDERED. 36
Petitioners filed a Motion for Reconsideration 37 which was
denied by the trial court in an Order 38 dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER . . . THE HONORABLE TRIAL COURT
GRAVELY ERRED IN RULING THAT RESPONDENT IS
ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER . . . RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBAND'S
RIGHT TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER . . . RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF
BENHUR PARDICO. cSHATC
4.1.3. WHETHER . . . RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF
BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN
PETITIONERS. 39
Petitioners' Arguments
Petitioners essentially assail the sufficiency of
the amparo petition. They contend that the writ of amparo is
available only in cases where the factual and legal bases of the
violation or threatened violation of the aggrieved party's right to
life, liberty and security are clear. Petitioners assert that in the
case at bench, Virginia miserably failed to establish all these.
First, the petition is wanting on its face as it failed to state with
some degree of specificity the alleged unlawful act or omission
of the petitioners constituting a violation of or a threat to Ben's
right to life, liberty and security. And second, it cannot be
deduced from the evidence Virginia adduced that Ben is missing;
or that petitioners had a hand in his alleged disappearance. On
the other hand, the entries in the logbook which bear the
signatures of Ben and Lolita are eloquent proof that petitioners
released Ben on March 31, 2008 at around 10:30 p.m.
Petitioners thus posit that the trial court erred in issuing the writ
and in holding them responsible for Ben's disappearance.
Our Ruling
Virginia's Petition for Writ of Amparo is fatally defective and must
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and
enforced disappearances in the country. Its purpose is to provide
an expeditious and effective relief "to any person whose right to
life, liberty and security is violated or threatened with violation by
an unlawful act or omission of a public official or employee, or of
a private individual or entity." 40
Here, Ben's right to life, liberty and security is firmly settled as
the parties do not dispute his identity as the same person
summoned and questioned at petitioners' security office on the
night of March 31, 2008. Such uncontroverted fact ipso
facto established Ben's inherent and constitutionally enshrined
right to life, liberty and security. Article 6 41 of the International
Covenant on Civil and Political Rights 42 recognizes every
human being's inherent right to life, while Article 9 43 thereof
ordains that everyone has the right to liberty and security. The
right to life must be protected by law while the right to liberty and
security cannot be impaired except on grounds provided by and
in accordance with law. This overarching command against
deprivation of life, liberty and security without due process of law
is also embodied in our fundamental law. 44
The pivotal question now that confronts us is whether Ben's
disappearance as alleged in Virginia's petition and proved during
the summary proceedings conducted before the court a
quo, falls within the ambit of A.M. No. 07-9-12-SC and relevant
laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act
or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SC's coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee
on Revision of the Rules of Court which drafted A.M. No. 07-9-
12-SC chose to allow it to evolve through time and jurisprudence
and through substantive laws as may be promulgated by
Congress. 45 Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v. Tagitis 46 when this Court
defined enforced disappearances. The Court in that case applied
the generally accepted principles of international law and
adopted the International Convention for the Protection of All
Persons from Enforced Disappearance's definition of enforced
disappearances, as "the arrest, detention, abduction or any other
form of deprivation of liberty by agents of the State or by persons
or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a
person outside the protection of the law." 47
Not long thereafter, another significant development
affecting A.M. No. 07-9-12-SC came about after Congress
enacted Republic Act (RA) No. 9851 48 on December 11, 2009.
Section 3 (g) thereof defines enforced or involuntary
disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means
the arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing
from the protection of the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo 49 where Justice
Arturo D. Brion wrote in his Separate Opinion that with the
enactment of RA No. 9851, "the Rule on the Writ ofAmparo is
now a procedural law anchored, not only on the constitutional
rights to the rights to life, liberty and security, but on a concrete
statutory definition as well of what an 'enforced or involuntary
disappearance' is." 50 Therefore, A.M. No. 07-9-12-SC's
reference to enforced disappearances should be construed to
mean the enforced or involuntary disappearance of persons
contemplated in Section 3 (g) of RA No. 9851. Meaning, in
probing enforced disappearance cases, courts should readA.M.
No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus,
we can derive the following elements that constitute it: HcaDIA
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization's
refusal to acknowledge or give information on the fate or
whereabouts of the person subject of theamparo petition; and,
(d) that the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ
of amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was
carried out by, or with the authorization, support or acquiescence
of, the State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has
the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bong's testimony
that Navia had a menacing attitude towards Ben and that he
slapped and inflicted fistic blows upon him. Given the
circumstances and the pugnacious character of Navia at that
time, his threatening statement, "Wala kang nakita at wala kang
narinig, papatayin ko na si Ben,"cannot be taken lightly. It
unambiguously showed his predisposition at that time. In
addition, there is nothing on record which would support
petitioners' assertion that they released Ben on the night of
March 31, 2008 unscathed from their wrath. Lolita sufficiently
explained how she was prodded into affixing her signatures in
the logbook without reading the entries therein. And so far, the
information petitioners volunteered are sketchy at best, like the
alleged complaint of Mrs. Emphasis who was never identified or
presented in court and whose complaint was never reduced in
writing.
But lest it be overlooked, in an amparo petition, proof of
disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is
not present in this case. The petition does not contain any
allegation of State complicity, and none of the evidence
presented tend to show that the government or any of its agents
orchestrated Ben's disappearance. In fact, none of its agents,
officials, or employees were impleaded or implicated in
Virginia's amparo petition whether as responsible or accountable
persons. 51 Thus, in the absence of an allegation or proof that
the government or its agents had a hand in Ben's disappearance
or that they failed to exercise extraordinary diligence in
investigating his case, the Court will definitely not hold the
government or its agents either as responsible or accountable
persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a
writ of amparo may lie against a private individual or entity. But
even if the person sought to be held accountable or responsible
in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an
indispensable element. Here, petitioners are mere security
guards at Grand Royale Subdivision in Brgy. Lugam, Malolos
City and their principal, the Asian Land, is a private entity. They
do not work for the government and nothing has been presented
that would link or connect them to some covert police, military or
governmental operation. As discussed above, to fall within the
ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the
disappearance must be attended by some governmental
involvement. This hallmark of State participation differentiates an
enforced disappearance case from an ordinary case of a missing
person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial
Court, Branch 20, Malolos City, is REVERSED and SET
ASIDE. The Petition for Writ of Amparo filed by
Virginia Pardico is hereby DISMISSED.
SO ORDERED.
||| (Navia v. Pardico, G.R. No. 184467, [June 19, 2012], 688
PHIL 266-282)