Page 1 of 53
1. Arts. 36, 89-94 RPC
G.R. No. 102007 September 2, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO BAYOTAS y CORDOVA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
ROMERO, J.:
In Criminal Case No. C-3217 filed before Branch 16, RTC
Roxas City, Rogelio Bayotas y Cordova was charged with
Rape and eventually convicted thereof on June 19, 1991 in
a decision penned by Judge Manuel E. Autajay. Pending
appeal of his conviction, Bayotas died on February 4, 1992
at
the National Bilibid Hospital due to cardio respiratory arrest
secondary to hepatic encephalopathy secondary to hipato
carcinoma gastric malingering. Consequently, the Supreme
Court in its Resolution of May 20, 1992 dismissed the
criminal aspect of the appeal. However, it required the
Solicitor General to file its comment with regard to Bayotas'
civil liability arising from his commission of the offense
charged.
In his comment, the Solicitor General expressed his view
that the death of accused-appellant did not extinguish his
civil liability as a result of his commission of the offense
charged. The Solicitor General, relying on the case
of People v. Sendaydiego 1 insists that the appeal should
still be resolved for the purpose of reviewing his conviction
by the lower court on which the civil liability is based.
Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that the
death of the accused while judgment of conviction is pending
appeal extinguishes both his criminal and civil penalties. In
support of his position, said counsel invoked the ruling of the
Court of Appeals in People v. Castillo and Ocfemia 2 which
held that the civil obligation in a criminal case takes root in
the criminal liability and, therefore, civil liability is
extinguished if accused should die before final judgment is
rendered.
We are thus confronted with a single issue: Does death of
the accused pending appeal of his conviction extinguish his
civil liability?
In the aforementioned case of People v. Castillo, this issue
was settled in the affirmative. This same issue posed therein
was phrased thus: Does the death of Alfredo Castillo affect
both his criminal responsibility and his civil liability as a
consequence of the alleged crime?
It resolved this issue thru the following disquisition:
Article 89 of the Revised Penal Code is the controlling
statute. It reads, in part:
Art. 89. How criminal liability is totally extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties;
and as to the pecuniary penalties liability therefor is
extinguished only when the death of the offender occurs
before final judgment;
With reference to Castillo's criminal liability, there is no
question. The law is plain. Statutory construction is
unnecessary. Said liability is extinguished.
The civil liability, however, poses a problem. Such liability is
extinguished only when the death of the offender occurs
before final judgment. Saddled upon us is the task of
ascertaining the legal import of the term "final judgment." Is
it final judgment as contradistinguished from an interlocutory
order? Or, is it a judgment which is final and executory?
We go to the genesis of the law. The legal precept contained
in Article 89 of the Revised Penal Code heretofore
transcribed is lifted from Article 132 of the Spanish El Codigo
Penal de 1870 which, in part, recites:
La responsabilidad penal se extingue.
1. Por la muerte del reo en cuanto a las penas personales
siempre, y respecto a las pecuniarias, solo cuando a su
fallecimiento no hubiere recaido sentencia firme.
xxx xxx xxx
The code of 1870 . . . it will be observed employs the term
"sentencia firme." What is "sentencia firme" under the old
statute?
XXVIII Enciclopedia Juridica Española, p. 473, furnishes the
ready answer: It says:
SENTENCIA FIRME. La sentencia que adquiere la fuerza de
las definitivas por no haberse utilizado por las partes
litigantes recurso alguno contra ella dentro de los terminos
y plazos legales concedidos al efecto.
"Sentencia firme" really should be understood as one which
is definite. Because, it is only when judgment is such that,
as Medina y Maranon puts it, the crime is confirmed — "en
condena determinada;" or, in the words of Groizard, the guilt
of the accused becomes — "una verdad legal." Prior thereto,
should the accused die, according to Viada, "no hay
legalmente, en tal caso, ni reo, ni delito, ni responsabilidad
criminal de ninguna clase." And, as Judge Kapunan well
explained, when a defendant dies before judgment becomes
executory, "there cannot be any determination by final
judgment whether or not the felony upon which the civil
action might arise exists," for the simple reason that "there
is no party defendant." (I Kapunan, Revised Penal Code,
Annotated, p. 421. Senator Francisco holds the same view.
Francisco, Revised Penal Code, Book One, 2nd ed., pp.
859-860)
The legal import of the term "final judgment" is similarly
reflected in the Revised Penal Code. Articles 72 and 78 of

that legal body mention the term "final judgment" in the
sense that it is already enforceable. This also brings to mind
Section 7, Rule 116 of the Rules of Court which states that
a judgment in a criminal case becomes final "after the lapse
of the period for perfecting an appeal or when the sentence
has been partially or totally satisfied or served, or the
defendant has expressly waived in writing his right to
appeal."
By fair intendment, the legal precepts and opinions here
collected funnel down to one positive conclusion: The term
final judgment employed in the Revised Penal Code means
judgment beyond recall. Really, as long as a judgment has
not become executory, it cannot be truthfully said that
defendant is definitely guilty of the felony charged against
him.
Not that the meaning thus given to final judgment is without
reason. For where, as in this case, the right to institute a
separate civil action is not reserved, the decision to be
rendered must, of necessity, cover "both the criminal and the
civil aspects of the case." People vs. Yusico (November 9,
1942), 2 O.G., No. 100, p. 964. See also: People vs. Moll,
68 Phil., 626, 634; Francisco, Criminal Procedure, 1958 ed.,
Vol. I, pp. 234, 236. Correctly, Judge Kapunan observed that
as "the civil action is based solely on the felony committed
and of which the offender might be found guilty, the death of
the offender extinguishes the civil liability." I Kapunan,
Revised Penal Code, Annotated, supra.
Here is the situation obtaining in the present case: Castillo's
criminal liability is out. His civil liability is sought to be
enforced by reason of that criminal liability. But then, if we
dismiss, as we must, the criminal action and let the civil
aspect remain, we will be faced with the anomalous situation
whereby we will be called upon to clamp civil liability in a
case where the source thereof — criminal liability — does
not exist. And, as was well stated in Bautista, et
al. vs. Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be found
and held criminally liable in a civil suit," which solely would
remain if we are to divorce it from the criminal proceeding."
This ruling of the Court of Appeals in the Castillo case 3 was
adopted by the Supreme Court in the cases of People of the
Philippines v. Bonifacio Alison, et al., 4 People of the
Philippines v. Jaime Jose, et al. 5 and People of the
Philippines v. Satorre 6 by dismissing the appeal in view of
the death of the accused pending appeal of said cases.
As held by then Supreme Court Justice Fernando in
the Alison case:
The death of accused-appellant Bonifacio Alison having
been established, and considering that there is as yet no
final judgment in view of the pendency of the appeal, the
criminal and civil liability of the said accused-appellant
Alison was extinguished by his death (Art. 89, Revised Penal
Code; Reyes' Criminal Law, 1971 Rev. Ed., p. 717, citing
People v. Castillo and Ofemia C.A., 56 O.G. 4045);
consequently, the case against him should be dismissed.
Page 2 of 53
On the other hand, this Court in the subsequent cases
of Buenaventura Belamala v. Marcelino
Polinar 7 and Lamberto Torrijos v. The Honorable Court of
Appeals 8 ruled differently. In the former, the issue decided
by this court was: Whether the civil liability of one accused
of physical injuries who died before final judgment is
extinguished by his demise to the extent of barring any claim
therefore against his estate. It was the contention of the
administrator-appellant therein that the death of the accused
prior to final judgment extinguished all criminal and civil
liabilities resulting from the offense, in view of Article 89,
paragraph 1 of the Revised Penal Code. However, this court
ruled therein:
We see no merit in the plea that the civil liability has been
extinguished, in view of the provisions of the Civil Code of
the Philippines of 1950 (Rep. Act No. 386) that became
operative eighteen years after the revised Penal Code. As
pointed out by the Court below, Article 33 of the Civil Code
establishes a civil action for damages on account of physical
injuries, entirely separate and distinct from the criminal
action.
Art. 33. In cases of defamation, fraud, and physical injuries,
a civil action for damages, entirely separate and distinct from
the criminal action, may be brought by the injured party.
Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence.
Assuming that for lack of express reservation, Belamala's
civil action for damages was to be considered instituted
together with the criminal action still, since both proceedings
were terminated without final adjudication, the civil action of
the offended party under Article 33 may yet be enforced
separately.
In Torrijos, the Supreme Court held that:
xxx xxx xxx
It should be stressed that the extinction of civil liability
follows the extinction of the criminal liability under Article 89,
only when the civil liability arises from the criminal act as its
only basis. Stated differently, where the civil liability does not
exist independently of the criminal responsibility, the
extinction of the latter by death, ipso facto extinguishes the
former, provided, of course, that death supervenes before
final judgment. The said principle does not apply in instant
case wherein the civil liability springs neither solely nor
originally from the crime itself but from a civil contract of
purchase and sale. (Emphasis ours)
xxx xxx xxx
In the above case, the court was convinced that the civil
liability of the accused who was charged with estafa could
likewise trace its genesis to Articles 19, 20 and 21 of the Civil
Code since said accused had swindled the first and second
vendees of the property subject matter of the contract of
sale. It therefore concluded: "Consequently, while the death
of the accused herein extinguished his criminal liability

including fine, his civil liability based on the laws of human
relations remains."
Thus it allowed the appeal to proceed with respect to the civil
liability of the accused, notwithstanding the extinction of his
criminal liability due to his death pending appeal of his
conviction.
To further justify its decision to allow the civil liability to
survive, the court relied on the following ratiocination: Since
Section 21, Rule 3 of the Rules of Court 9 requires the
dismissal of all money claims against the defendant whose
death occurred prior to the final judgment of the Court of
First Instance (CFI), then it can be inferred that actions for
recovery of money may continue to be heard on appeal,
when the death of the defendant supervenes after the CFI
had rendered its judgment. In such case, explained this
tribunal, "the name of the offended party shall be included in
the title of the case as plaintiff-appellee and the legal
representative or the heirs of the deceased-accused should
be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from Castillo
to Torrijos, the rule established was that the survival of the
civil liability depends on whether the same can be predicated
on sources of obligations other than delict. Stated differently,
the claim for civil liability is also extinguished together with
the criminal action if it were solely based thereon, i.e., civil
liability ex delicto.
However, the Supreme Court in People v. Sendaydiego, et
al. 10 departed from this long-established principle of law. In
this case, accused Sendaydiego was charged with and
convicted by the lower court of malversation thru falsification
of public documents. Sendaydiego's death supervened
during the pendency of the appeal of his conviction.
This court in an unprecedented move resolved to dismiss
Sendaydiego's appeal but only to the extent of his criminal
liability. His civil liability was allowed to survive although it
was clear that such claim thereon was exclusively
dependent on the criminal action already extinguished. The
legal import of such decision was for the court to continue
exercising appellate jurisdiction over the entire appeal,
passing upon the correctness of Sendaydiego's conviction
despite dismissal of the criminal action, for the purpose of
determining if he is civilly liable. In doing so, this Court
issued a Resolution of July 8, 1977 stating thus:
The claim of complainant Province of Pangasinan for the
civil liability survived Sendaydiego because his death
occurred after final judgment was rendered by the Court of
First Instance of Pangasinan, which convicted him of three
complex crimes of malversation through falsification and
ordered him to indemnify the Province in the total sum of
P61,048.23 (should be P57,048.23).
The civil action for the civil liability is deemed impliedly
instituted with the criminal action in the absence of express
waiver or its reservation in a separate action (Sec. 1, Rule
111 of the Rules of Court). The civil action for the civil liability
Page 3 of 53
is separate and distinct from the criminal action (People and
Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107
Phil. 8).
When the action is for the recovery of money and the
defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the
manner especially provided in Rule 87 of the Rules of Court
(Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a money
judgment had been rendered against him by the Court of
First Instance, the action survives him. It may be continued
on appeal (Torrijos vs. Court of Appeals, L-40336, October
24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly liable for
the funds improperly disbursed although he has no criminal
liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National
Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal of the
appeal of the deceased Sendaydiego insofar as his criminal
liability is concerned, the Court Resolved to continue
exercising appellate jurisdiction over his possible civil
liability for the money claims of the Province of Pangasinan
arising from the alleged criminal acts complained of, as if no
criminal case had been instituted against him, thus making
applicable, in determining his civil liability, Article 30 of the
Civil Code . . . and, for that purpose, his counsel is directed
to inform this Court within ten (10) days of the names and
addresses of the decedent's heirs or whether or not his
estate is under administration and has a duly appointed
judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the
civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of
Court).
Succeeding cases 11 raising the identical issue have
maintained adherence to our ruling in Sendaydiego; in other
words, they were a reaffirmance of our abandonment of the
settled rule that a civil liability solely anchored on the
criminal (civil liability ex delicto) is extinguished upon
dismissal of the entire appeal due to the demise of the
accused.
But was it judicious to have abandoned this old ruling? A re-
examination of our decision in Sendaydiego impels us to
revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego:
The resolution of the civil action impliedly instituted in the
criminal action can proceed irrespective of the latter's
extinction due to death of the accused pending appeal of his
conviction, pursuant to Article 30 of the Civil Code and
Section 21, Rule 3 of the Revised Rules of Court.
Article 30 of the Civil Code provides:
When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil

case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of.
Clearly, the text of Article 30 could not possibly lend support
to the ruling in Sendaydiego. Nowhere in its text is there a
grant of authority to continue exercising appellate
jurisdiction over the accused's civil liability ex delicto when
his death supervenes during appeal. What Article 30
recognizes is an alternative and separate civil action which
may be brought to demand civil liability arising from a
criminal offense independently of any criminal action. In the
event that no criminal proceedings are instituted during the
pendency of said civil case, the quantum of evidence needed
to prove the criminal act will have to be that which is
compatible with civil liability and that is, preponderance of
evidence and not proof of guilt beyond reasonable doubt.
Citing or invoking Article 30 to justify the survival of the civil
action despite extinction of the criminal would in effect
merely beg the question of whether civil liability ex
delicto survives upon extinction of the criminal action due to
death of the accused during appeal of his conviction. This is
because whether asserted in
the criminal action or in a separate civil action, civil
liability ex delicto is extinguished by the death of the
accused while his conviction is on appeal. Article 89 of the
Revised Penal Code is clear on this matter:
Art. 89. How criminal liability is totally extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties;
and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs
before final judgment;
xxx xxx xxx
However, the ruling in Sendaydiego deviated from the
expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the civil
action impliedly instituted with the criminal, as one filed
under Article 30, as though no criminal proceedings had
been filed but merely a separate civil action. This had the
effect of converting such claims from one which is dependent
on the outcome of the criminal action to an entirely new and
separate one, the prosecution of which does not even
necessitate the filing of criminal proceedings. 12 One would
be hard put to pinpoint the statutory authority for such a
transformation. It is to be borne in mind that in recovering
civil liability ex delicto, the same has perforce to be
determined in the criminal action, rooted as it is in the court's
pronouncement of the guilt or innocence of the accused.
This is but to render fealty to the intendment of Article 100
of the Revised Penal Code which provides that "every
person criminally liable for a felony is also civilly liable." In
such cases, extinction of the criminal action due to death of
the accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia Solvi.
Death dissolves all things.
Page 4 of 53
In sum, in pursuing recovery of civil liability arising from
crime, the final determination of the criminal liability is a
condition precedent to the prosecution of the civil action,
such that when the criminal action is extinguished by the
demise of accused-appellant pending appeal thereof, said
civil action cannot survive. The claim for civil liability springs
out of and is dependent upon facts which, if true, would
constitute a crime. Such civil liability is an inevitable
consequence of the criminal liability and is to be declared
and enforced in the criminal proceeding. This is to be
distinguished from that which is contemplated under Article
30 of the Civil Code which refers to the institution of a
separate civil action that does not draw its life from a criminal
proceeding. The Sendaydiego resolution of July 8, 1977,
however, failed to take note of this fundamental distinction
when it allowed the survival of the civil action for the
recovery of civil liability ex delicto by treating the same as a
separate civil action referred to under Article 30. Surely, it
will take more than just a summary judicial pronouncement
to authorize the conversion of said civil action to an
independent one such as that contemplated under Article 30.
Ironically however, the main decision in Sendaydiego did not
apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:
Sendaydiego's appeal will be resolved only for the purpose
of showing his criminal liability which is the basis of the civil
liability for which his estate would be liable. 13
In other words, the Court, in resolving the issue of his civil
liability, concomitantly made a determination on whether
Sendaydiego, on the basis of evidenced adduced, was
indeed guilty beyond reasonable doubt of committing the
offense charged. Thus, it upheld Sendaydiego's conviction
and pronounced the same as the source of his civil liability.
Consequently, although Article 30 was not applied in the
final determination of Sendaydiego's civil liability, there was
a reopening of the criminal action already extinguished
which served as basis for Sendaydiego's civil liability. We
reiterate: Upon death of the accused pending appeal of his
conviction, the criminal action is extinguished inasmuch as
there is no longer a defendant to stand as the accused; the
civil action instituted therein for recovery of civil liability ex
delicto is ipso facto extinguished, grounded as it is on the
criminal.
Section 21, Rule 3 of the Rules of Court was also invoked to
serve as another basis for the Sendaydiego resolution of
July 8, 1977. In citing Sec. 21, Rule 3 of the Rules of Court,
the Court made the inference that civil actions of the type
involved in Sendaydiego consist of money claims, the
recovery of which may be continued on appeal if defendant
dies pending appeal of his conviction by holding his estate
liable therefor. Hence, the Court's conclusion:
"When the action is for the recovery of money" "and the
defendant dies before final judgment in the court of First
Instance, it shall be dismissed to be prosecuted in the
manner especially provided" in Rule 87 of the Rules of Court
(Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money
judgment had been rendered against him by the Court of
First Instance, the action survives him. It may be continued
on appeal.
Sadly, reliance on this provision of law is misplaced. From
the standpoint of procedural law, this course taken
in Sendaydiego cannot be sanctioned. As correctly
observed by Justice Regalado:
xxx xxx xxx
I do not, however, agree with the justification advanced in
both Torrijos and Sendaydiego which, relying on the
provisions of Section 21, Rule 3 of the Rules of Court, drew
the strained implication therefrom that where the civil liability
instituted together with the criminal liabilities had already
passed beyond the judgment of the then Court of First
Instance (now the Regional Trial Court), the Court of
Appeals can continue to exercise appellate jurisdiction
thereover despite the extinguishment of the component
criminal liability of the deceased. This pronouncement,
which has been followed in the Court's judgments
subsequent and consonant to Torrijos and Sendaydiego,
should be set aside and abandoned as being clearly
erroneous and unjustifiable.
Said Section 21 of Rule 3 is a rule of civil procedure in
ordinary civil actions. There is neither authority nor
justification for its application in criminal procedure to civil
actions instituted together with and as part of criminal
actions. Nor is there any authority in law for the summary
conversion from the latter category of an ordinary civil action
upon the death of the offender. . . .
Moreover, the civil action impliedly instituted in a criminal
proceeding for recovery of civil liability ex delicto can hardly
be categorized as an ordinary money claim such as that
referred to in Sec. 21, Rule 3 enforceable before the estate
of the deceased accused.
Ordinary money claims referred to in Section 21, Rule 3 must
be viewed in light of the provisions of Section 5, Rule 86
involving claims against the estate, which
in Sendaydiego was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule 3, in
relation to Section 5 of Rule 86, 14 are contractual money
claims while the claims involved in civil liability ex
delicto may include even the restitution of personal or real
property." 15 Section 5, Rule 86 provides an exclusive
enumeration of what claims may be filed against the estate.
These are: funeral expenses, expenses for the last illness,
judgments for money and claim arising from contracts,
expressed or implied. It is clear that money claims arising
from delict do not form part of this exclusive enumeration.
Hence, there could be no legal basis in (1) treating a civil
action ex delicto as an ordinary contractual money claim
referred to in Section 21, Rule 3 of the Rules of Court and
(2) allowing it to survive by filing a claim therefor before the
estate of the deceased accused. Rather, it should be
extinguished upon extinction of the criminal action
Page 5 of 53
engendered by the death of the accused pending finality of
his conviction.
Accordingly, we rule: if the private offended party, upon
extinction of the civil liability ex delicto desires to recover
damages from the same act or omission complained of, he
must subject to Section 1, Rule 111 16 (1985 Rules on
Criminal Procedure as amended) file a separate civil action,
this time predicated not on the felony previously charged but
on other sources of obligation. The source of obligation upon
which the separate civil action is premised determines
against whom the same shall be enforced.
If the same act or omission complained of also arises
from quasi-delict or may, by provision of law, result in an
injury to person or property (real or personal), the separate
civil action must be filed against the executor or
administrator 17 of the estate of the accused pursuant to
Sec. 1, Rule 87 of the Rules of Court:
Sec. 1. Actions which may and which may not be brought
against executor or administrator. — No action upon a claim
for the recovery of money or debt or interest thereon shall
be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
This is in consonance with our ruling in Belamala 18 where
we held that, in recovering damages for injury to persons
thru an independent civil action based on Article 33 of the
Civil Code, the same must be filed against the executor or
administrator of the estate of deceased accused and not
against the estate under Sec. 5, Rule 86 because this rule
explicitly limits the claim to those for funeral expenses,
expenses for the last sickness of the decedent, judgment for
money and claims arising from contract, express or implied.
Contractual money claims, we stressed, refers only to purely
personal obligations other than those which have their
source in delict or tort.
Conversely, if the same act or omission complained of also
arises from contract, the separate civil action must be filed
against the estate of the accused, pursuant to Sec. 5, Rule
86 of the Rules of Court.
From this lengthy disquisition, we summarize our ruling
herein:
1. Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability
based solely thereon. As opined by Justice Regalado, in this
regard, "the death of the accused prior to final judgment
terminates his criminal liability and only the civil
liability directly arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may also
be predicated on a source of obligation other than
delict. 19 Article 1157 of the Civil Code enumerates these

other sources of obligation from which the civil liability may
arise as a result of the same act or omission:
a) Law 20
b) Contracts
c) Quasi-contracts
d) . . .
e) Quasi-delicts
3. Where the civil liability survives, as explained in Number
2 above, an action for recovery therefor may be pursued but
only by way of filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure
as amended. This separate civil action may be enforced
either against the executor/administrator or the estate of the
accused, depending on the source of obligation upon which
the same is based as explained above.
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action.
In such case, the statute of limitations on the civil liability is
deemed interrupted during the pendency of the criminal
case, conformably with provisions of Article 1155 21 of the
Civil Code, that should thereby avoid any apprehension on
a possible privation of right by prescription. 22
Applying this set of rules to the case at bench, we hold that
the death of appellant Bayotas extinguished his criminal
liability and the civil liability based solely on the act
complained of, i.e., rape. Consequently, the appeal is
hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is
DISMISSED with costs de oficio.
SO ORDERED.
------------------------------XXX-------------------------------
SECOND DIVISION
G.R. No. 167571 November 25, 2008
LUIS PANAGUITON, JR., petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and
RODRIGO G. CAWILI, respondents.
DECISION
TINGA, J.:
This is a Petition for Review 1 of the resolutions of the Court
of Appeals dated 29 October 2004 and 21 March 2005 in CA
G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s
(petitioner's) petition for certiorari and his subsequent
motion for reconsideration. 2
Page 6 of 53
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various sums of
money amounting to P1,979,459.00 from petitioner. On 8
January 1993, Cawili and his business associate, Ramon C.
Tongson (Tongson), jointly issued in favor of petitioner three
(3) checks in payment of the said loans. Significantly, all
three (3) checks bore the signatures of both Cawili and
Tongson. Upon presentment for payment on 18 March 1993,
the checks were dishonored, either for insufficiency of funds
or by the closure of the account. Petitioner made formal
demands to pay the amounts of the checks upon Cawili on
23 May 1995 and upon Tongson on 26 June 1995, but to no
avail. 3
On 24 August 1995, petitioner filed a complaint against
Cawili and Tongson 4 for violating Batas Pambansa Bilang 22
(B.P. Blg. 22) 5 before the Quezon City Prosecutor's Office.
During the preliminary investigation, only Tongson appeared
and filed his counter-affidavit. 6 Tongson claimed that he had
been unjustly included as party-respondent in the case since
petitioner had lent money to Cawili in the latter's personal
capacity. Moreover, like petitioner, he had lent various sums
to Cawili and in appreciation of his services, he was offered
to be an officer of Roma Oil Corporation. He averred that he
was not Cawili's business associate; in fact, he himself had
filed several criminal cases against Cawili for violation of
B.P. Blg. 22. Tongson denied that he had issued the
bounced checks and pointed out that his signatures on the
said checks had been falsified.
To counter these allegations, petitioner presented several
documents showing Tongson's signatures, which were
purportedly the same as the those appearing on the
checks. 7 He also showed a copy of an affidavit of adverse
claim wherein Tongson himself had claimed to be Cawili's
business associate. 8
In a resolution dated 6 December 1995, 9 City Prosecutor III
Eliodoro V. Lara found probable cause only against Cawili
and dismissed the charges against Tongson. Petitioner filed
a partial appeal before the Department of Justice (DOJ) even
while the case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997, 10 after
finding that it was possible for Tongson to co-sign the
bounced checks and that he had deliberately altered his
signature in the pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito R. Zuño
directed the City Prosecutor of Quezon City to conduct a
reinvestigation of the case against Tongson and to refer the
questioned signatures to the National Bureau of
Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but
his motion was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S.
Sampaga (ACP Sampaga) dismissed the complaint against
Tongson without referring the matter to the NBI per the Chief
State Prosecutor's resolution. In her resolution, 11 ACP
Sampaga held that the case had already prescribed

pursuant to Act No. 3326, as amended, 12 which provides
that violations penalized by B.P. Blg. 22 shall prescribe after
four (4) years. In this case, the four (4)-year period started
on the date the checks were dishonored, or on 20 January
1993 and 18 March 1993. The filing of the complaint before
the Quezon City Prosecutor on 24 August 1995 did not
interrupt the running of the prescriptive period, as the law
contemplates judicial, and not administrative proceedings.
Thus, considering that from 1993 to 1998, more than four (4)
years had already elapsed and no information had as yet
been filed against Tongson, the alleged violation of B.P. Blg.
22 imputed to him had already prescribed. 13 Moreover, ACP
Sampaga stated that the order of the Chief State Prosecutor
to refer the matter to the NBI could no longer be sanctioned
under Section 3, Rule 112 of the Rules of Criminal
Procedure because the initiative should come from petitioner
himself and not the investigating prosecutor. 14 Finally, ACP
Sampaga found that Tongson had no dealings with
petitioner. 15
Petitioner appealed to the DOJ. But the DOJ, through
Undersecretary Manuel A.J. Teehankee, dismissed the
same, stating that the offense had already prescribed
pursuant to Act No. 3326. 16Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003, 17 the
DOJ, this time through then Undersecretary Ma. Merceditas
N. Gutierrez, ruled in his favor and declared that the offense
had not prescribed and that the filing of the complaint with
the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus,
the Office of the City Prosecutor of Quezon City was directed
to file three (3) separate informations against Tongson for
violation of B.P. Blg. 22. 19 On 8 July 2003, the City
Prosecutor's Office filed an information 20 charging petitioner
with three (3) counts of violation of B.P. Blg. 22. 21
However, in a resolution dated 9 August 2004, 22 the DOJ,
presumably acting on a motion for reconsideration filed by
Tongson, ruled that the subject offense had already
prescribed and ordered "the withdrawal of the three (3)
informations for violation of B.P. Blg. 22" against Tongson.
In justifying its sudden turnabout, the DOJ explained that Act
No. 3326 applies to violations of special acts that do not
provide for a prescriptive period for the offenses thereunder.
Since B.P. Blg. 22, as a special act, does not provide for the
prescription of the offense it defines and punishes, Act No.
3326 applies to it, and not Art. 90 of the Revised Penal Code
which governs the prescription of offenses penalized
thereunder.23 The DOJ also cited the case of Zaldivia v.
Reyes, Jr.,24 wherein the Supreme Court ruled that the
proceedings referred to in Act No. 3326, as amended, are
judicial proceedings, and not the one before the prosecutor's
office.
Petitioner thus filed a petition for certiorari 25 before the Court
of Appeals assailing the 9 August 2004 resolution of the
DOJ. The petition was dismissed by the Court of Appeals in
view of petitioner's failure to attach a proper verification and
certification of non-forum shopping. The Court of Appeals
also noted that the 3 April 2003 resolution of the DOJ
Page 7 of 53
attached to the petition is a mere photocopy. 26 Petitioner
moved for the reconsideration of the appellate court's
resolution, attaching to said motion an amended
Verification/Certification of Non-Forum Shopping. 27Still, the
Court of Appeals denied petitioner's motion, stating that
subsequent compliance with the formal requirements would
not per se warrant a reconsideration of its resolution.
Besides, the Court of Appeals added, the petition is patently
without merit and the questions raised therein are too
unsubstantial to require consideration. 28
In the instant petition, petitioner claims that the Court of
Appeals committed grave error in dismissing his petition on
technical grounds and in ruling that the petition before it was
patently without merit and the questions are too
unsubstantial to require consideration.
The DOJ, in its comment, 29 states that the Court of Appeals
did not err in dismissing the petition for non-compliance with
the Rules of Court. It also reiterates that the filing of a
complaint with the Office of the City Prosecutor of Quezon
City does not interrupt the running of the prescriptive period
for violation of B.P. Blg. 22. It argues that under B.P. Blg.
22, a special law which does not provide for its own
prescriptive period, offenses prescribe in four (4) years in
accordance with Act No. 3326.
Cawili and Tongson submitted their comment, arguing that
the Court of Appeals did not err in dismissing the petition for
certiorari. They claim that the offense of violation of B.P. Blg.
22 has already prescribed per Act No. 3326. In addition, they
claim that the long delay, attributable to petitioner and the
State, violated their constitutional right to speedy disposition
of cases. 30
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his
petition before the Court of Appeals substantially complies
with the rules, the verification being intended simply to
secure an assurance that the allegations in the pleading are
true and correct and not a product of the imagination or a
matter of speculation. He points out that this Court has held
in a number of cases that a deficiency in the verification can
be excused or dispensed with, the defect being neither
jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal requirement
intended to secure an assurance that matters which are
alleged are true and correct–the court may simply order the
correction of unverified pleadings or act on them and waive
strict compliance with the rules in order that the ends of
justice may be served, 32 as in the instant case. In the case
at bar, we find that by attaching the pertinent verification to
his motion for reconsideration, petitioner sufficiently
complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in
dismissing the petition on the ground that there was failure
to attach a certified true copy or duplicate original of the 3

April 2003 resolution of the DOJ. We agree. A plain reading
of the petition before the
Court of Appeals shows that it seeks the annulment of the
DOJ resolution dated 9 August 2004, 33 a certified true copy
of which was attached as Annex "A." 34 Obviously, the Court
of Appeals committed a grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJ's reliance on Zaldivia v.
Reyes,35 a case involving the violation of a municipal
ordinance, in declaring that the prescriptive period is tolled
only upon filing of the information in court. According to
petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,36 wherein this Court ruled that the filing of
the complaint with the fiscal's office for preliminary
investigation suspends the running of the prescriptive
period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, petitioner notes. 37 He argues that sustaining
the DOJ's and the Court of Appeals' pronouncements would
result in grave injustice to him since the delays in the present
case were clearly beyond his control. 38
There is no question that Act No. 3326, appropriately entitled
An Act to Establish Prescription for Violations of Special
Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin, is the law applicable to offenses
under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:
Section 1. Violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in accordance
with the following rules: (a) x x x; (b) after four years for those
punished by imprisonment for more than one month, but less
than two years; (c) x x x
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and
punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not
constituting jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P.
Blg. 22. An offense under B.P. Blg. 22 merits the penalty of
imprisonment of not less than thirty (30) days but not more
than one year or by a fine, hence, under Act No. 3326, a
violation of B.P. Blg. 22 prescribes in four (4) years from the
commission of the offense or, if the same be not known at
the time, from the discovery thereof. Nevertheless, we
cannot uphold the position that only the filing of a case in
court can toll the running of the prescriptive period.
It must be pointed out that when Act No. 3326 was passed
on 4 December 1926, preliminary investigation of criminal
Page 8 of 53
offenses was conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial proceedings for
its investigation and punishment," 39 and the prevailing rule
at the time was that once a complaint is filed with the justice
of the peace for preliminary investigation, the prescription of
the offense is halted. 40
The historical perspective on the application of Act No. 3326
is illuminating. 41 Act No. 3226 was approved on 4 December
1926 at a time when the function of conducting the
preliminary investigation of criminal offenses was vested in
the justices of the peace. Thus, the prevailing rule at the
time, as shown in the cases of U.S. v. Lazada 42 and People
v. Joson,43 is that the prescription of the offense is tolled
once a complaint is filed with the justice of the peace for
preliminary investigation inasmuch as the filing of the
complaint signifies the institution of the criminal proceedings
against the accused. 44 These cases were followed by our
declaration in People v. Parao and Parao 45 that the first step
taken in the investigation or examination of offenses
partakes the nature of a judicial proceeding which suspends
the prescription of the offense. 46 Subsequently, in People v.
Olarte,47 we held that the filing of the complaint in the
Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does,
interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or
information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information
is filed may only proceed to investigate the case, its
actuations already represent the initial step of the
proceedings against the offender, 48 and hence, the
prescriptive period should be interrupted.
In Ingco v. Sandiganbayan 49 and Sanrio Company Limited
v. Lim,50 which involved violations of the Anti-Graft and
Corrupt Practices Act (R.A. No. 3019) and the Intellectual
Property Code (R.A. No. 8293), which are both special laws,
the Court ruled that the
prescriptive period is interrupted by the institution of
proceedings for preliminary investigation against the
accused. In the more recent case of Securities and
Exchange Commission v. Interport Resources Corporation,
et al.,51 the Court ruled that the nature and purpose of the
investigation conducted by the Securities and Exchange
Commission on violations of the Revised Securities
Act, 52 another special law, is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, and
thus effectively interrupts the prescriptive period.
The following disquisition in the Interport
Resources case 53 is instructive, thus:
While it may be observed that the term "judicial proceedings"
in Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in
set-up whereby the investigation of the charge for purposes
of prosecution has become the exclusive function of the
executive branch, the term "proceedings" should now be
understood either executive or judicial in character:

executive when it involves the investigation phase and
judicial when it refers to the trial and judgment stage. With
this clarification, any kind of investigative proceeding
instituted against the guilty person which may ultimately lead
to his prosecution should be sufficient to toll prescription. 54
Indeed, to rule otherwise would deprive the injured party the
right to obtain vindication on account of delays that are not
under his control. 55 A clear example would be this case,
wherein petitioner filed his complaint-affidavit on 24 August
1995, well within the four (4)-year prescriptive period. He
likewise timely filed his appeals and his motions for
reconsideration on the dismissal of the charges against
Tongson. He went through the proper channels, within the
prescribed periods. However, from the time petitioner filed
his complaint-affidavit with the Office of the City Prosecutor
(24 August 1995) up to the time the DOJ issued the assailed
resolution, an aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond petitioner's control.
After all, he had already initiated the active prosecution of
the case as early as 24 August 1995, only to suffer setbacks
because of the DOJ's flip-flopping resolutions and its
misapplication of Act No. 3326. Aggrieved parties, especially
those who do not sleep on their rights and actively pursue
their causes, should not be allowed to suffer unnecessarily
further simply because of circumstances beyond their
control, like the accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet prescribed.
Petitioner’s filing of his complaint-affidavit before the Office
of the City Prosecutor on 24 August 1995 signified the
commencement of the proceedings for the prosecution of the
accused and thus effectively interrupted the prescriptive
period for the offenses they had been charged under B.P.
Blg. 22. Moreover, since there is a definite finding of
probable cause, with the debunking of the claim of
prescription there is no longer any impediment to the filing
of the information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of
the Court of Appeals dated 29 October 2004 and 21 March
2005 are REVERSED and SET ASIDE. The resolution of the
Department of Justice dated 9 August 2004 is also
ANNULLED and SET ASIDE. The Department of Justice is
ORDERED to REFILE the information against the petitioner.
No costs.
SO ORDERED.
-------------------------------XXX--------------------------------
Page 9 of 53
FIRST DIVISION
[G.R. No. 141931. December 4, 2000]
ANICETO RECEBIDO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
RESOLUTION
KAPUNAN, J.:
This is a petition for review on certiorari assailing the
Decision of the Court of Appeals in C.A.-G.R. CR No. 21347
entitled People of the Philippines versus Aniceto Recebido,
dated September 9, 1999 which found petitioner guilty
beyond reasonable doubt of Falsification of Public
Document; and its Resolution dated February 15, 2000
denying petitioners motion for reconsideration.
The antecedent facts are the following, to wit:
On September 9, 1990, private complainant Caridad Dorol
went to the house of her cousin, petitioner Aniceto Recebido,
at San Isidro, Bacon, Sorsogon to redeem her property, an
agricultural land with an area of 3,520 square meters located
at San Isidro, Bacon, Sorsogon, which Caridad Dorol
mortgaged to petitioner sometime in April of 1985. Petitioner
and Caridad Dorol did not execute a document on the
mortgage but Caridad Dorol instead gave petitioner a copy
of the Deed of Sale dated June 16, 1973 (Exhibit A)
executed in her favor by her father, Juan Dorol.
In said confrontation, petitioner refused to allow Caridad
Dorol to redeem her property on his claim that she had sold
her property to him in 1979. Caridad Dorol maintained and
insisted that the transaction between them involving her
property was a mortgage.
Caridad Dorol verified from the Office of the Assessor in
Sorsogon that there exists on its file a Deed of Sale dated
August 13, 1979 (Exhibit J), allegedly executed by Caridad
Dorol in favor of petitioner and that the property was
registered in the latters name. After comparison of the
specimen signatures of Caridad Dorol in other documents
(Exhibits K to K-10) with that of the signature of Caridad
Dorol on the questioned Deed of Sale, NBI Document
Examiner Antonio Magbojas, found that the latter signature
was falsified (Exhibits L-1 to L-2).
Thereafter, Caridad Dorol filed her complaint against
petitioner Aniceto Recebido with the National Bureau of
Investigation (NBI), Legaspi City and its Questioned
Documents Division conducted an examination in the
original copy of the Deed of Sale in question allegedly signed
by Caridad, particularly her signature affixed thereon.
Mr. Magbojas report was approved by the Chief of the
Questioned Documents Division, Arcadio Ramos, and the
Deputy Director of Technical Services, Manuel Roura, both
of the NBI. [1]
Thus, the Office of the Provincial Prosecutor of Sorsogon
filed the information indicting petitioner for Falsification of

Public Document with the Regional Trial Court, 5 thJudicial
Region, Branch 51, Sorsogon, Sorsogon, reading as follows:
That on or about the 13 th day of August, 1979, in the
Municipality of Sorsogon, Province of Sorsogon, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, being a private individual, did then
and there, willfully, unlawfully and feloniously, with intent to
defraud, falsify and/or imitate the signature of one Caridad
Dorol and/or cause it to appear that said Caridad Dorol has
signed her name on a Deed of Absolute Sale of Real
Property in favor of the herein accused and Notarized as
Doc. No. 680; page No. 54; Boon No. XIV and Series of 1979
of the Registry of Notary Public Dominador S. Reyes, when
in truth and in fact accused well knew, that Caridad Dorol did
not execute said document, to the damage and prejudice of
the latter.
Contrary to law. [2]
Upon arraignment, petitioner pleaded not guilty.
As narrated by the Court of Appeals, the petitioner contends
that the land in question was mortgaged to him by Juan
Dorol, the father of Caridad, on February 25, 1977 and was
subsequently sold to him on August 13, 1983 although it was
made to appear that the deed of sale was executed on
August 13, 1979. It was also on the said date that Recebido
gave Caridad the amount of P1,000.00 in addition to the
P2,600.00 mortgage price given to Juan Dorol which
culminated into the execution of the Deed of Sale signed by
Caridad. [3]
After trial on the merits, the trial court rendered the decision
on December 2, 1996, convicting petitioner of the crime
charged and sentencing him as follows:
ACCORDINGLY, accused ANECITO RECEBIDO is
sentenced to an indeterminate penalty of one (1) year to
three (3) years and six (6) months of prision correccional as
maximum and to pay a fine of Three Thousand (P3,000.00)
Pesos, with subsidiary imprisonment.
Accused is ordered to pay P5,000.00 damages and to vacate
the land in question owned by the offended party.
SO ORDERED. [4]
On appeal, the Court of Appeals affirmed with modification
the decision of the trial court, the dispositive portion of which
reads:
WHEREFORE, with the modification that the award for
damages is DELETED, the assailed judgment is AFFIRMED
in all other respects.
SO ORDERED. [5]
The petitioner raises his case before this Court seeking the
reversal of the assailed decision and resolution of the Court
of Appeals. Based on his petition, the following issues are
before this Court:
Page 10 of 53
1. Whether or not the crime charged had already prescribed
at the time the information was filed?
2. Whether or not the Court of Appeals committed grave
abuse of discretion in sustaining the conviction of the
petitioner?
3. Whether or not the Court of Appeals committed grievous
error in affirming the decision of the trial court for the
petitioner to vacate the land in question owned by the
offended party?
We rule in the negative on the three issues.
On the first issue: While the defense of prescription of the
crime was raised only during the motion for reconsideration
of the decision of the Court of Appeals, there was no waiver
of the defense. Under the Rules of Court, the failure of the
accused to assert the ground of extinction of the
offense, inter alia, in a motion to quash shall not be deemed
a waiver of such ground. [6] The reason is that by
prescription, the State or the People loses the right to
prosecute the crime or to demand the service of the penalty
imposed. [7] Accordingly, prescription, although not invoked
in the trial, may, as in this case, be invoked on
appeal.[8] Hence, the failure to raise this defense in the
motion to quash the information does not give rise to the
waiver of the petitioner-accused to raise the same anytime
thereafter including during appeal.
Nonetheless, we hold that the crime charged has not
prescribed. The petitioner is correct in stating that whether
or not the offense charged has already prescribed when the
information was filed would depend on the
penalty imposable therefor, which in this case is prision
correccional in its medium and maximum periods and a fine
of not more than 5,000.00 pesos. [9] Under the Revised Penal
Code, [10] said penalty is a correctional penalty in the same
way that the fine imposed is categorized as
correctional. Both the penalty and fine being correctional,
the offense shall prescribe in ten years. [11] The issue that the
petitioner has missed, however, is the reckoning point of the
prescriptive period. The petitioner is of the impression that
the ten-year prescriptive period necessarily started at the
time the crime was committed. This is inaccurate. Under
Article 91 of the Revised Penal Code, the period of
prescription shall commence to run from the day on which
the crime is discovered by the offended party, the
authorities, or their agents, x x x. In People v. Reyes,[12] this
Court has declared that registration in public registry is a
notice to the whole world. The record is constructive notice
of its contents as well as all interests, legal and equitable,
included therein. All persons are charged with knowledge of
what it contains.
The prosecution has established that private complainant
Dorol did not sell the subject land to the petitioner-accused
at anytime and that sometime in 1983 the private
complainant mortgaged the agricultural land to petitioner
Recebido. It was only on September 9, 1990, when she went
to petitioner to redeem the land that she came to know of the

falsification committed by the petitioner. On the other hand,
petitioner contends that the land in question was mortgaged
to him by Juan Dorol, the father of private complainant, and
was subsequently sold to him on August 13, 1983. This
Court notes that the private offended party had no actual
knowledge of the falsification prior to September 9,
1990. Meanwhile, assuming arguendo that the version of
the petitioner is believable, the alleged sale could not have
been registered before 1983, the year the alleged deed of
sale was executed by the private complainant. Considering
the foregoing, it is logical and in consonance with human
experience to infer that the crime committed was not
discovered, nor could have been discovered, by the
offended party before 1983. Neither could constructive
notice by registration of the forged deed of sale, which is
favorable to the petitioner since the running of the
prescriptive period of the crime shall have to be reckoned
earlier, have been done before 1983 as it is impossible for
the petitioner to have registered the deed of sale prior
thereto. Even granting arguendo that the deed of sale was
executed by the private complainant, delivered to the
petitioner-accused in August 13, 1983 and registered on the
same day, the ten-year prescriptive period of the crime had
not yet elapsed at the time the information was filed in
1991. The inevitable conclusion, therefore, is that the crime
had not prescribed at the time of the filing of the information.
On the second issue: We hold that the Court of Appeals did
not commit any grave abuse of discretion when it affirmed
petitioners conviction by the trial court. The petitioner admits
that the deed of sale that was in his possession is a forged
document as found by the trial and appellate
court. [13] Petitioner, nonetheless, argues that
notwithstanding this admission, the fact remains that there
is no proof that the petitioner authored such falsification or
that the forgery was done under his direction. This argument
is without merit. Under the circumstance, there was no need
of any direct proof that the petitioner was the author of the
forgery. As keenly observed by the Solicitor General, the
questioned document was submitted by petitioner himself
when the same was requested by the NBI for
examination. Clearly in possession of the falsified deed of
sale was petitioner and not Caridad Dorol who merely
verified the questioned sale with the Provincial Assessors
Office of Sorsogon. [14] In other words, the petitioner was in
possession of the forged deed of sale which purports to sell
the subject land from the private complainant to him. Given
this factual backdrop, the petitioner is presumed to be the
author of the forged deed of sale, despite the absence of any
direct evidence of his authorship of the forgery. Since the
petitioner is the only person who stood to benefit by the
falsification of the document found in his possession, it is
presumed that he is the material author of the
falsification. [15] As it stands, therefore, we are unable to
discern any grave abuse of discretion on the part of the
Court of Appeals.
On the third issue: Petitioner submits that the trial court is
without jurisdiction to order petitioner to vacate the land in
question considering that the crime for which he is charged
Page 11 of 53
is falsification. [16] The petitioner insists that the civil aspect
involved in the criminal case at bar refer to the civil damages
recoverable ex delito or arising from the causative act or
omission. [17] In addition, petitioner argues that he is entitled
to possession as mortgagee since the private complainant
has not properly redeemed the property in question.
These are specious arguments. The petitioner based his
claim of possession alternatively by virtue of two alternative
titles: one, based on the forged deed of sale and, two, as
mortgagee of the land. As already discussed, the deed of
sale was forged and, hence, could not be a valid basis of
possession. Neither could his status as mortgagee be the
basis of possession since it is the mortgagor in a contract of
mortgage who is entitled to the possession of the
property. We have taken note of the practice in the provinces
that in giving a realty for a collateral, possession usually
goes with it. [18] Besides, even assuming that petitioner had
a right to possess the subject land, his possession became
unlawful when the private complainant offered to redeem the
property and petitioner unjustly refused. Petitioner cannot
profit from the effects of his crime. The trial court, therefore,
did not commit any error in ordering petitioner to vacate the
subject property.
In view of the foregoing, this Court finds that the Court of
Appeals did not commit any reversible error in its Decision
dated September 9, 1999 and its Resolution dated February
15, 2000.
ACCORDINGLY, the instant petition is DENIED for lack of
merit.
SO ORDERED.
-------------------------------XXX--------------------------------
THIRD DIVISION
G.R. No. 169588 October 7, 2013
JADEWELL PARKING SYSTEMS CORPORATION
represented by its manager and authorized
representative Norma Tan, Petitioner,
vs.
HON. JUDGE NELSON F. LIDUA SR., Presiding Judge of
The Municipal Trial Court Branch 3, Baguio City,
BENEDICTO BALAJADIA, EDWIN ANG, "JOHN DOES"
and "PETER DOES" Respondents.
DECISION
LEONEN, J.:
We are asked to rule on this Petition for Review on Certiorari
under Rule 45 of the Rules of Court, praying that the
assailed Decision of Branch 7 of the Regional Trial Court of
Baguio City and Order dated August 15, 2005 be reversed
and that Criminal Case Nos. 112934 and 112935 be ordered
reinstated and prosecuted before the Municipal Trial Court
of Baguio City.

Petitioner Jadewell Parking Systems Corporation is a private
parking operator duly authorized to operate and manage the
parking spaces in Baguio City pursuant to City Ordinance
003-2000. It is also authorized under Section 13 of the City
Ordinance to render any motor vehicle immobile by placing
its wheels in a clamp if the vehicle is illegally parked. 1
According to the Resolution of the Office of the Provincial
Prosecutor, San Fernando City, La Union, the facts leading
to the filing of the Informations are the following:
Jadewell Parking Systems Corporation (Jadewell), thru [sic]
its General Manager Norma Tan and Jadewell personnel
Januario S. Ulpindo and Renato B. Dulay alleged in their
affidavit-complaint that on May 17, 2003, the respondents in
I.S No. 2003-1996 Edwin Ang, Benedicto Balajadia and John
Doe dismantled, took and carried away the clamp attached
to the left front wheel of a Mitsubishi Adventure with Plate
No. WRK 624 owned by Edwin Ang. Accordingly, the car was
then illegally parked and left unattended at a Loading and
Unloading Zone. The value of the clamp belonging to
Jadewell which was allegedly forcibly removed with a piece
of metal is ₱26,250.00. The fines of ₱500.00 for illegal
parking and the declamping fee of ₱500.00 were also not
paid by the respondents herein.
In I.S. No., 2003-1997, Jadewell thru [sic] its General
Manager Norina C. Tan, Renato B. Dulay and Ringo
Sacliwan alleged in their affidavit-complaint that on May 7,
2003, along Upper Mabini Street, Baguio City, herein
respondents Benedicto Balajadia, Jeffrey Walan and two (2)
John Does forcibly removed the clamp on the wheel of a
Nissan Cefiro car with Plate No. UTD 933, belonging to
Jeffrey Walan which was then considered illegally parked for
failure to pay the prescribed parking fee. Such car was
earlier rendered immobile by such clamp by Jadewell
personnel. After forcibly removing the clamp, respondents
took and carried it away depriving its owner, Jadewell, its
use and value which is ₱26,250.00. According to
complainants, the fine of ₱500.00 and the declamping fee of
₱500.00 were not paid by the respondents. 2
The incident resulted in two cases filed by petitioner and
respondents against each other. Petitioner Jadewell filed
two cases against respondents: Robbery under I.S. Nos.
2003-1996 and 2003-1997. Petitioner filed an Affidavit-
Complaint against respondents Benedicto Balajadia, Jeffrey
Walan, and three (3) John Does, one of whom was
eventually identified as respondent Ramon Ang. The
Affidavit-Complaint was filed with the Office of the City
Prosecutor of Baguio City on May 23, 2003. 3 A preliminary
investigation took place on May 28, 2003. Respondent
Benedicto Balajadia likewise filed a case charging Jadewell
president, Rogelio Tan, and four (4) of Jadewell's employees
with Usurpation of Authority/Grave Coercion in I.S. No.
2003-1935.
In his Counter-affidavit for the two cases he filed for himself
and on behalf of his co-respondents, respondent Benedicto
Balajadia denied that his car was parked illegally. He
admitted that he removed the clamp restricting the wheel of
Page 12 of 53
his car since he alleged that the placing of a clamp on the
wheel of the vehicle was an illegal act. He alleged further
that he removed the clamp not to steal it but to remove the
vehicle from its clamp so that he and his family could
continue using the car. He also confirmed that he had the
clamp with him, and he intended to use it as a piece of
evidence to support the Complaint he filed against
Jadewell. 4
In the Resolution 5 of the Office of the Provincial Prosecutor
of San Fernando City, La Union, Acting City Prosecutor
Mario Anacleto Banez found probable cause to file a case of
Usurpation of Authority against the petitioner. Regarding the
case of Robbery against respondents, Prosecutor Banez
stated that:
We find no probable cause to charge respondents in these
two (2) cases for the felony of Robbery. The elements of
Robbery, specifically the intent to gain and force upon things
are absent in the instant cases, thereby negating the
existence of the crime.
xxxx
We, however, respectfully submit that the acts of
respondents in removing the wheel clamps on the wheels of
the cars involved in these cases and their failure to pay the
prescribed fees were in violation of Sec. 21 of Baguio City
Ordinance No. 003-2000 which prescribes fines and
penalties for violations of the provisions of such ordinance.
Certainly, they should not have put the law into their own
hands. (Emphasis supplied)
WHEREFORE, premises considered, there is probable
cause against all the respondents, except Jeffrey Walan or
Joseph Walan (who has been dragged into this controversy
only by virtue of the fact that he was still the registered owner
of the Nissan Cefiro car) for violation of Section 21 of City
Ord. No. 003-2000 in both cases and we hereby file the
corresponding informations against them in Court. 6
Prosecutor Banez issued this Resolution on July 25, 2003.
On October 2, 2003, two criminal Informations were filed
with the Municipal Trial Court of Baguio City dated July 25,
2003, stating:
That on May 17, 2003 at Baguio City and within the
jurisdiction of this Honorable Court, the above-named
accused with unity of action and concerted design, did then
and there, with unity of action and concerted design, willfully,
unlawfully and feloniously forcibly dismantled [sic] and took
[sic] an immobilizing clamp then attached to the left front
wheel of a Mitsubishi Adventure vehicle with Plate No. WRK
624 belonging to Edwin Ang which was earlier rendered
immobilized by such clamp by Jadewell Personnel's for
violation of the Baguio City ordinance No. 003-2600 to the
damage and prejudice of private complainant Jadewell
Parking System Corporation (Jadewell) which owns such
clamp worth ₱26,250.00 and other consequential damages.
CONTRARY TO LAW,

San Fernando City, La Union for Baguio City, this 25th day
of July 2003. 7
The cases were docketed as Criminal Case Nos. 112934
and 112935 with the Municipal Trial Court of Baguio City,
Branch 3. Respondent Benedicto Balajadia and the other
accused through their counsel Paterno Aquino filed a
January 20, 2004 Motion to Quash and/or Manifestation 8 on
February 2, 2004. The Motion to Quash and/or Manifestation
sought the quashal of the two Informations on the following
grounds: extinguishment of criminal action or liability due to
prescription; failure of the Information to state facts that
charged an offense; and the imposition of charges on
respondents with more than one offense.
In their Motion to Quash, respondents argued that:
1. The accused in this case are charged with violation of
Baguio City Ordinance No. 003-2000.
2. Article 89 of the Revised Penal [sic] provides that criminal
liability is totally extinguished by prescription of the crime.
3. Act No. 3326, as amended by Act No. 3763, provides:
"Section 1. x x x Violations penalized by municipal
ordinances shall prescribed [sic] after two months."
4. As alleged in the Information, the offense charged in this
case was committed on May 7, 2003. 5. As can be seen from
the right hand corner of the Information, the latter was filed
with this Honorable Court on October 2, 2003, almost five
(5) months after the alleged commission of the offense
charged. Hence, criminal liability of the accused in this case,
if any, was already extinguished by prescription when the
Information was filed. 9
In an Order 10 dated February 10, 2004, respondent Judge
Nelson F. Lidua, Sr., Presiding Judge of the Municipal Trial
Court of Baguio City, Branch 3, granted the accused's
Motion to Quash and dismissed the cases.
Petitioner filed a Motion for Reconsideration on February 27,
2004 responding to the February 10, 2004 Order 11 to argue
among other points that:
6.b. For another, the offenses charged have not yet
prescribed. Under the law, the period of prescription of
offenses shall be interrupted by the filing of the complaint or
information. While it may be true that the Informations in
these cases have been filed only on October 2, 2003, the
private complainant has, however, filed its criminal
complaint on May 23, 2003, well within the prescribed
period. 12
Respondents filed their Opposition 13 on March 24, 2004, and
petitioner filed a Reply 14 on April 1, 2004.
The respondent judge released a Resolution 15 dated April
16, 2004 upholding the Order granting respondents' Motion
to Quash. The Resolution held that:
For the guidance of the parties, the Court will make an
extended resolution on one of the ground [sic] for the motion
Page 13 of 53
to quash, which is that the criminal action has been
extinguished on grounds of prescription.
These offenses are covered by the Rules on Summary
Procedure being alleged violations of City Ordinances.
Under Section 9 of the Rule [sic] on Summary Procedure,
the running of the prescriptive period shall be halted on the
date the case is filed in Court and not on any date before
that (Zaldivia vs. Reyes, Jr. G.R. No. 102342, July 3, 1992,
En Banc).
In case of conflict, the Rule on Summary Procedure as the
special law prevails over Sec. 1 of Rule 110 of the Rules on
Criminal Procedure and also Rule 110 of the Rules of
Criminal Procedure must yield to Act No. 3326 or "AN ACT
TO ESTABLISH PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL ACTS AND
MUNICIPAL ORDINANCES AND TO PROVIDE WHEN
PRESCRIPTION SHALL BEGIN TO RUN" (Ibid).
Petitioner then filed a Petition 16 for Certiorari under Rule 65
with the Regional Trial Court of Baguio City. The case was
raffled to Branch 7 of the Regional Trial Court of Baguio City.
Petitioners contended that the respondent judge committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in dismissing Criminal Case Nos. 112934 and
112935 on the ground of prescription. Petitioners argued
that the respondent judge ruled erroneously saying that the
prescriptive period for the offenses charged against the
private respondents was halted by the filing of the
Complaint/Information in court and not when the Affidavit-
Complaints were filed with the Office of the City Prosecutor
of Baguio City. Petitioner cited Section 1 of Rule 110 of the
Rules on Criminal Procedure:
x x x "criminal actions shall be instituted x x x in x x x other
chartered cities, the complaint shall be filed with the office
of the prosecutor unless otherwise provided in their charter"
and the last paragraph thereof states that "the institution of
the criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise
provided in special laws." 17
Petitioner contended further that:
the filing of the criminal complaint with the Office of the City
Prosecutor of Baguio City, not the filing of the criminal
information before this Honorable Court, is the reckoning
point in determining whether or not the criminal action in
these cases had prescribed.
xxxx
The offenses charged in Criminal Case Nos. 112934 and
112935 are covered by the Revised Rules on Summary
Procedure, not by the old Rules on Summary Procedure.
Considering that the offenses charged are for violations of a
City Ordinance, the criminal cases can only be commenced
by informations. Thus, it was only legally and procedurally
proper for the petitioner to file its complaint with the Office
of the City Prosecutor of Baguio City as required by Section

11 of the new Rules on Summary Procedure, these criminal
cases "shall be commenced only by information." These
criminal cases cannot be commenced in any other way.
Moreover, the ruling of the Supreme Court in Zaldivia vs.
Reyes cited in the assailed Resolution does not apply in this
case. The offense charged in Zaldivia is a violation of
municipal ordinance in which case, the complaint should
have been filed directly in court as required by Section 9 of
the old Rules on Summary Procedure. On the other hand,
Criminal Case Nos. 112934 and 112935 are for violations of
a city ordinance and as aforestated, "shall be commenced
only by information." 18
Thus, petitioner contended that the filing of the criminal
complaint with the Office of the City Prosecutor stopped the
running of the two-month prescriptive period. Hence, the
offenses charged have not prescribed.
In their Comment, 19 respondents maintained that the
respondent judge did not gravely abuse his discretion. They
held that Section 2 of Act No. 3326, as amended, provides
that:
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the
institution of judicial proceeding for its investigation and
punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run
again if the proceedings are dismissed for reasons not
constituting jeopardy. 20 (Emphasis supplied)
Respondents argued that Zaldivia v. Reyes 21 held that the
proceedings mentioned in Section 2 of Act No. 3326, as
amended, refer to judicial proceedings . Thus, this Court, in
Zaldivia, held that the filing of the Complaint with the Office
of the Provincial Prosecutor was not a judicial proceeding.
The prescriptive period commenced from the alleged date of
the commission of the crime on May 7, 2003 and ended two
months after on July 7, 2003. Since the Informations were
filed with the Municipal Trial Court on October 2, 2003, the
respondent judge did not abuse its discretion in dismissing
Criminal Case Nos. 112934 and 112935.
In a Decision dated April 20, 2005, the Regional Trial Court
of Baguio City Branch 7, through Judge Clarence F.
Villanueva, dismissed the Petition for Certiorari. The
Regional Trial Court held that, since cases of city ordinance
violations may only be commenced by the filing of an
Information, then the two-month prescription period may
only be interrupted by the filing of Informations (for violation
of City Ordinance 003-2000) against the respondents in
court. The Regional Trial Court of Baguio City, Branch 7,
ruled in favor of the respondents and upheld the respondent
judge’s Order dated February 10, 2004 and the Resolution
dated April 16, 2004.
Page 14 of 53
Petitioners then filed a May 17, 2005 Motion for
Reconsideration which was denied by the Regional Trial
Court in an August 15, 2005 Order.
Hence, this Petition.
The principal question in this case is whether the filing of the
Complaint with the Office of the City Prosecutor on May 23,
2003 tolled the prescription period of the commission of the
offense charged against respondents Balajadia, Ang, "John
Does," and "Peter Does."
Petitioner contends that the prescription period of the
offense in Act No. 3326, as amended by Act No. 3763, does
not apply because respondents were charged with the
violation of a city ordinance and not a municipal ordinance.
In any case, assuming arguendo that the prescriptive period
is indeed two months, filing a Complaint with the Office of
the City Prosecutor tolled the prescription period of two
months. This is because Rule 110 of the Rules of Court
provides that, in Manila and in other chartered cities, the
Complaint shall be filed with the Office of the Prosecutor
unless otherwise provided in their charters.
In their Comment, 22 respondents maintain that respondent
Judge Lidua did not err in dismissing the cases based on
prescription. Also, respondents raise that the other grounds
for dismissal they raised in their Motion to Quash, namely,
that the facts charged constituted no offense and that
respondents were charged with more than one offense, were
sustained by the Metropolitan Trial Court. Also, respondents
argue that petitioner had no legal personality to assail the
Orders, since Jadewell was not assailing the civil liability of
the case but the assailed Order and Resolution. This was
contrary to the ruling in People v. Judge Santiago 23 which
held that the private complainant may only appeal the civil
aspect of the criminal offense and not the crime itself.
In the Reply, 24 petitioner argues that the respondent judge
only dismissed the case on the ground of prescription, since
the Resolution dated April 16, 2004 only cited that ground.
The Order dated February 10, 2004 merely stated but did
not specify the grounds on which the cases were dismissed.
Petitioner also maintains that the proceedings contemplated
in Section 2 of Act No. 3326 must include the preliminary
investigation proceedings before the National Prosecution
Service in light of the Rules on Criminal Procedure 25 and
Revised Rules on Summary Procedure.
Lastly, petitioner maintains that it did have legal personality,
since in a Petition for Certiorari, "persons aggrieved x x x
may file a verified petition" 26 before the court.
The Petition is denied.
The resolution of this case requires an examination of both
the substantive law and the procedural rules governing the
prosecution of the offense. With regard to the prescription
period, Act No. 3326, as amended, is the only statute that
provides for any prescriptive period for the violation of
special laws and municipal ordinances. No other special law
provides any other prescriptive period, and the law does not

provide any other distinction. Petitioner may not argue that
Act No. 3326 as amended does not apply.
In Romualdez v. Hon. Marcelo, 27 this Court defined the
parameters of prescription:
In resolving the issue of prescription of the offense charged,
the following should be considered: (1) the period of
prescription for the offense charged; (2) the time the period
of prescription starts to run; and (3) the time the prescriptive
period was interrupted. 28 (Citation omitted)
With regard to the period of prescription, it is now without
question that it is two months for the offense charged under
City Ordinance 003-2000.
The commencement of the prescription period is also
governed by statute. Article 91 of the Revised Penal Code
reads:
Art. 91. Computation of prescription of offenses. — The
period of prescription shall commence to run from the day
on which the crime is discovered by the offended party, the
authorities, or their agents, and shall be interrupted by the
filing of the complaint or information, and shall commence to
run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The offense was committed on May 7, 2003 and was
discovered by the attendants of the petitioner on the same
day. These actions effectively commenced the running of the
prescription period.
The procedural rules that govern this case are the 1991
Revised Rules on Summary Procedure.
SECTION 1. Scope – This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts in the following cases falling
within their jurisdiction:
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances (Emphasis
supplied)
Section 11 of the Rules provides that:
Sec. 11. How commenced. — The filing of criminal cases
falling within the scope of this Rule shall be either by
complaint or by information: Provided, however, that in
Metropolitan Manila and in Chartered Cities, such cases
shall be commenced only by information, except when the
offense cannot be prosecuted de officio.
Page 15 of 53
The Local Government Code provides for the classification
of cities. Section 451 reads:
SEC. 451. Cities, Classified. – A city may either be
component or highly urbanized: Provided, however, that the
criteria established in this Code shall not affect the
classification and corporate status of existing cities.
Independent component cities are those component cities
whose charters prohibit their voters from voting for provincial
elective officials. Independent component cities shall be
independent of the province.
Cities in the Philippines that were created by law can either
be highly urbanized cities or component cities. An
independent component city has a charter that proscribes its
voters from voting for provincial elective officials. It stands
that all cities as defined by Congress are chartered cities. In
cases as early as United States v. Pascual Pacis, 29 this
Court recognized the validity of the Baguio Incorporation Act
or Act No. 1963 of 1909, otherwise known as the charter of
Baguio City.
As provided in the Revised Rules on Summary Procedure,
only the filing of an Information tolls the prescriptive period
where the crime charged is involved in an ordinance. The
respondent judge was correct when he applied the rule in
Zaldivia v. Reyes.
In Zaldivia v. Reyes, the violation of a municipal ordinance
in Rodriguez, Rizal also featured similar facts and issues
with the present case. In that case, the offense was
committed on May 11, 1990. The Complaint was received on
May 30, 1990, and the Information was filed with the
Metropolitan Trial Court of Rodriguez on October 2, 1990.
This Court ruled that:
As it is clearly provided in the Rule on Summary Procedure
that among the offenses it covers are violations of municipal
or city ordinances, it should follow that the charge against
the petitioner, which is for violation of a municipal ordinance
of Rodriguez, is governed by that rule and not Section 1 of
Rule 110.
Where paragraph (b) of the section does speak of "offenses
falling under the jurisdiction of the Municipal Trial Courts and
Municipal Circuit Trial Courts," the obvious reference is to
Section 32(2) of B.P. No. 129, vesting in such courts:
(2) Exclusive original jurisdiction over all offenses
punishable with imprisonment of not exceeding four years
and two months, or a fine of not more than four thousand
pesos, or both such fine and imprisonment, regardless of
other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving
damage to property through criminal negligence they shall
have exclusive original jurisdiction where the imposable fine
does not exceed twenty thousand pesos.
These offenses are not covered by the Rules on Summary
Procedure.

Under Section 9 of the Rules on Summary Procedure, "the
complaint or information shall be filed directly in court
without need of a prior preliminary examination or
preliminary investigation." Both parties agree that this
provision does not prevent the prosecutor from conducting a
preliminary investigation if he wants to. However, the case
shall be deemed commenced only when it is filed in court,
whether or not the prosecution decides to conduct a
preliminary investigation. This means that the running of the
prescriptive period shall be halted on the date the case is
actually filed in court and not on any date before that.
This interpretation is in consonance with the afore-quoted
Act No. 3326 which says that the period of prescription shall
be suspended "when proceedings are instituted against the
guilty party." The proceedings referred to in Section 2
thereof are "judicial proceedings," contrary to the
submission of the Solicitor General that they include
administrative proceedings. His contention is that we must
not distinguish as the law does not distinguish. As a matter
of fact, it does.
At any rate, the Court feels that if there be a conflict between
the Rule on Summary Procedure and Section 1 of Rule 110
of the Rules on Criminal Procedure, the former should
prevail as the special law. And if there be a conflict between
Act No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in
the exercise of its rule-making power, is not allowed to
"diminish, increase or modify substantive rights" under
Article VIII, Section 5(5) of the Constitution. Prescription in
criminal cases is a substantive right. 30
Jurisprudence exists showing that when the Complaint is
filed with the Office of the Prosecutor who then files the
Information in court, this already has the effect of tolling the
prescription period. The recent People v.
Pangilinan 31categorically stated that Zaldivia v. Reyes is not
controlling as far as special laws are concerned. Pangilinan
referred to other cases that upheld this principle as well.
However, the doctrine of Pangilinan pertains to violations of
special laws but not to ordinances.
There is no distinction between the filing of the Information
contemplated in the Rules of Criminal Procedure and in the
Rules of Summary Procedure. When the representatives of
the petitioner filed the Complaint before the Provincial
Prosecutor of Baguio, the prescription period was running. It
continued to run until the filing of the Information. They had
two months to file the Information and institute the judicial
proceedings by filing the Information with the Municipal Trial
Court. The conduct of the preliminary investigation, the
original charge of Robbery, and the subsequent finding of
the violation of the ordinance did not alter the period within
which to file the Information. Respondents were correct in
arguing that the petitioner only had two months from the
discovery and commission of the offense before it prescribed
within which to file the Information with the Municipal Trial
Court.
Page 16 of 53
Unfortunately, when the Office of the Prosecutor filed the
Informations on October 5, 2003, the period had already
prescribed. Thus, respondent Judge Nestor Lidua, Sr. did
not err when he ordered the dismissal of the case against
respondents. According to the Department of Justice –
National Prosecutors Service Manual for Prosecutors, an
Information is defined under Part I, Section 5 as:
SEC. 5. Information. - An information is the accusation in
writing charging a person with an offense, subscribed by the
prosecutor, and filed with the court. The information need
not be placed under oath by the prosecutor signing the
same.
The prosecutor must, however, certify under oath that –
a) he has examined the complainant and his witnesses;
b) there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty
thereof;
c) the accused was informed of the complaint and of the
evidence submitted against him; and
d) the accused was given an opportunity to submit
controverting evidence.
As for the place of the filing of the Information, the Manual
also provides that:
SEC. 12. Place of the commission of offense. - The
complaint or information is sufficient if it states that the crime
charged was committed or some of the ingredients thereof
occurred at some place within the jurisdiction of the court,
unless the particular place in which the crime was committed
is an essential element of the crime, e.g. in a prosecution for
violation of the provision of the Election Code which
punishes the carrying of a deadly weapon in a "polling
place," or if it is necessary to identify the offense charged,
e.g., the domicile in the offense of "violation of domicile."
Finally, as for the prescription period, the Manual provides
that:
SEC. 20. How Period of Prescription Computed and
Interrupted. - For an offense penalized under the Revised
Penal Code, the period of prescription commences to run
from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall be
interrupted:
a) by the filing of the complaint with the Office of the
City/Provincial Prosecutor; or with the Office of the
Ombudsman; or
b) by the filing of the complaint or information with the court
even if it is merely for purposes of preliminary examination
or investigation, or even if the court where the complaint or
information is filed cannot try the case on its merits.

However, for an offense covered by the Rules on Summary
Procedure, the period of prescription is interrupted only by
the filing of the complaint or information in court.
xxxx
For violation of a special law or ordinance, the period of
prescription shall commence to run from the day of the
commission of the violation, and if the same is not known at
the time, from the discovery and the institution of judicial
proceedings for its investigation and punishment. The
prescription shall be interrupted only by the filing of the
complaint or information in court and shall begin to run again
if the proceedings are dismissed for reasons not constituting
double jeopardy. (Emphasis supplied).1âwphi1
Presidential Decree No. 1275 32 reorganized the Department
of Justice’s Prosecution Staff and established Regional
State Prosecution Offices. These Regional State
Prosecution Offices were assigned centers for particular
regions where the Informations will be filed. Section 6
provides that the area of responsibility of the Region 1
Center located in San Fernando, La Union includes Abra,
Benguet, Ilocos Norte, Ilocos Sur, La Union, Mt. Province,
Pangasinan, and the cities of Baguio, Dagupan, Laoag, and
San Carlos.
The Regional Prosecutor for Region 1 or his/her duly
assigned prosecutor was designated to file the Information
within the two-month period provided for in Act No. 3326, as
amended.1âwphi1
The failure of the prosecutor to seasonably file the
Information is unfortunate as it resulted in the dismissal of
the case against the private respondents. It stands that the
doctrine of Zaldivia is applicable to ordinances and their
prescription period. It also upholds the necessity of filing the
Information in court in order to toll the period. Zaldivia also
has this to say concerning the effects of its ruling:
The Court realizes that under the above interpretation, a
crime may prescribe even if the complaint is filed seasonably
with the prosecutor's office if, intentionally or not, he delays
the institution of the necessary judicial proceedings until it is
too late. However, that possibility should not justify a
misreading of the applicable rules beyond their obvious
intent as reasonably deduced from their plain language.
The remedy is not a distortion of the meaning of the rules
but a rewording thereof to prevent the problem here sought
to be corrected. 33
WHEREFORE the Petition is DENIED.
SO ORDERED.
---------------------------------XXX-----------------------------------
Page 17 of 53
FIRST DIVISION
[G.R. No. 141718. January 21, 2005]
BENJAMIN PANGAN y RIVERA, petitioner, vs. HON.
LOURDES F. GATBALITE, as the Presiding Judge,
Regional Trial Court of Angeles City, Branch 56, and
COL. JAMES D. LABORDO, as the City Jail Warden of
Angeles City, respondents.
DECISION
AZCUNA, J.:
Before the Court is a petition for review on certiorari under
Rule 45 of the 1997 Rules of Civil Procedure, assailing the
decision of the Regional Trial Court of Angeles City, Branch
56, rendered on January 31, 2000. [1]
The facts of this case are undisputed. The petitioner was
indicted for simple seduction in Criminal Case No. 85-816,
at the Municipal Trial Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel
for petitioner, submitted the case for decision without
offering any evidence, due to the petitioners constant
absence at hearings.
On September 16, 1987, the petitioner was convicted of the
offense charged and was sentenced to serve a penalty of
two months and one day of arresto mayor.
On appeal, the Regional Trial Court, on October 24, 1988,
affirmed in toto the decision of the Municipal Trial Court.
On August 9, 1991, the case was called for promulgation of
the decision in the court of origin. Despite due notice,
counsel for the petitioner did not appear. Notice to petitioner
was returned unserved with the notation that he no longer
resided at the given address. As a consequence, he also
failed to appear at the scheduled promulgation. The court of
origin issued an order directing the recording of the decision
in the criminal docket of the court and an order of arrest
against the petitioner. [2]
Pursuant to the order of arrest, on January 20, 2000, the
petitioner was apprehended and detained at the Mabalacat
Detention Cell. On January 24, 2000, petitioner filed a
Petition for a Writ of Habeas Corpus at the Regional Trial
Court of Angeles City. He impleaded as respondent the
Acting Chief of Police of Mabalacat, Pampanga. [3]Petitioner
contended that his arrest was illegal and unjustified on the
grounds that:
(a) the straight penalty of two months and one day of arresto
mayor prescribes in five years under No. 3, Article 93 [of the]
Revised Penal Code, and
(b) having been able to continuously evade service of
sentence for almost nine years, his criminal liability has long
been totally extinguished under No. 6, Article 89 [of the]
Revised Penal Code. [4]

After his transfer to the City Jail of Angeles City on January
25, 2000, petitioner filed an Amended Petition with the
Regional Trial Court, impleading herein respondent Col.
James D. Labordo, the Jail Warden of Angeles City, as
respondent. [5]
In response, the Jail Warden alleged that petitioners
detention was pursuant to the order of commitment
(mittimus), issued by Marlon P. Roque, Clerk of Court III of
the Municipal Trial Court of Angeles City, Branch 3, dated
January 25, 2000. [6]
On January 31, 2000, respondent Judge rendered the
decision, which is the subject of this present appeal, which
pronounced:
The Court cannot subscribe to the contention of the
petitioner that the penalty imposed on him in the decision
adverted to above had already prescribed, hence, his
detention is illegal for under Article 93 of the Revised Penal
Code:
The period of prescription of penalties shall commence to
run from the date when the culprit should evade the service
of sentence, and it shall be interrupted if the defendant
should give himself up, be captured, should go to some
foreign country with which this Government has no
extradition treaty, or should commit another crime before the
expiration of the period of prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence by
escaping during the term of his sentence;
3. That the convict who had escaped from prison has not
given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty, or
committed another crime;
4. The penalty has prescribed, because of the lapse of time
from the date of the evasion of the service of the sentence
by the convict.
In this case, the essential element of prescription which is
the evasion of the service of sentence is absent. Admittedly,
the petitioner herein has not served the penalty imposed on
him in prison and that during the service of the sentence, he
escaped therefrom. Notably, at the trial of Crim. Case No.
85-816 in the Municipal Trial Court, Branch III, Angeles City
and on the date set for the promulgation of the affirmed
decision, the petitioner failed to appear and remained at
large.
There was no evasion of the service of the sentence in this
case, because such evasion presupposes escaping during
the service of the sentence consisting in deprivation of
liberty. (Infante vs. Warden, 48 O.G. No. 122) (92 Phil. 310).
Page 18 of 53
Corollarily, the detention of the petitioner in Angeles City Jail
in compliance with the Order of Commitment (Exhibit E) is
not illegal for
A commitment in due form, based on a final judgment,
convicting and sentencing the defendant in a criminal case,
is conclusive evidence of the legality of his detention, unless
it appears that the court which pronounced the judgment was
without jurisdiction or exceeded it. (U.S. vs. Jayne, 24 Phil
90, 24 J.F. 94, Phil. Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-founded,
the petition for a writ of habeas corpus is hereby denied.
SO ORDERED.
Angeles City, January 31, 2000. [7]
From the above quoted decision, petitioner filed the instant
petition for review on a question purely of law and raised the
following issue:
HOW SHOULD THE PHRASE SHALL COMMENCE TO RUN
FROM THE DATE WHEN THE CULPRIT SHOULD EVADE
THE SERVICE OF SENTENCE IN ARTICLE 93 OF THE
REVISED PENAL CODE ON THE COMPUTATION OF THE
PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A
LITTLE DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE
PERIOD OF PENALTIES BEGIN TO RUN? [8]
Petitioner claims that:
xxx the period for the computation of penalties under Article
93 of the Revised Penal Code begins to run from the moment
the judgment of conviction becomes final and the convict
successfully evades, eludes, and dodges arrest for him to
serve sentence. [9]
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the
1952 ruling rendered in Infante vs. Warden, 48 O.G. No.
122, 92 Phil. 310, is, petitioner most respectfully submits,
not good case law. It imposes upon the convict a condition
not stated in the law. It is contrary to the spirit, nature or
essence of prescription of penalties, creates an ambiguity in
the law and opens the law to abuse by government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an
essential element, the convict must serve at least a few
seconds, minutes, days, weeks or years of his jail sentence
and then escapes before the computation of prescription of
penalties begins to run. This, petitioner respectfully submits
is not a condition stated in Article 93, which states that, the
prescription of penalties shall commence to run from the
date when the culprit should evade the service of sentence.
There is no dispute that the duty of government to compel
the service of sentence sets in when the judgment of
conviction becomes final.

The dispute, however, is in the construction of the
phrase should evade the service of sentence. When does
the period of prescription of penalties begin to run? The
Infante ruling construes this to mean that the convict must
escape from jail because such evasion presupposes
escaping during the service of the sentence consisting in
deprivation of liberty.
Petitioner, with due respect, disagrees because if that were
the intention of the law, then the phrase should evade the
service of sentence in Article 93 would have read: should
escape during the service of the sentence consisting in
deprivation of liberty. The legislature could have very easily
written Article 93 to read this way
The period of prescription of penalties shall commence to
run from the date when the culprit should escape during
the service of the sentence consisting in deprivation of
liberty, and it shall be interrupted if the defendant should
give himself up, be captured, should go to some foreign
country with which this Government has no extradition
treaty, or should commit another crime before the expiration
of the period of prescription.
But they did not.
The legislature wrote should evade the service of
sentence to cover or include convicts like him who, although
convicted by final judgment, were never arrested or
apprehended by government for the service of their
sentence. With all the powers of government at its disposal,
petitioner was able to successfully evade service of his 2
months and 1 day jail sentence for at least nine (9) years,
from August 9, 1991 to January 20, 2000. This is
approximately 3 years and 5 months longer than the 5-year
prescriptive period of the penalty imposed on him.
That, as the respondent RTC Judge noted, petitioner did not
attend the trial at the Municipal Trial Court and the
promulgation of his judgment of conviction in August 9, 1991
is of no moment. His bond for provisional release was surely
cancelled and an order of arrest was surely issued against
petitioner. The undisputed fact is that on August 9, 1991 the
judgment of conviction was promulgated in absentia and an
order for petitioners arrest was issued by the Municipal Trial
Court of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and
compel him to serve his sentence began on August 9, 1991.
The 5-year prescriptive period of his arresto mayor penalty
also began to run on that day considering that no relief was
taken therefrom. Since petitioner never gave himself up [n]or
was [he], until January 20, 2000, ever captured, for the
service of his sentence nor did he flee to some foreign
country with which [our] government has no extradition
treaty, that 5-year prescriptive period of his penalty ran
continuously from August 9, 1991 when his judgment of
conviction was promulgated in absentia and was never
interrupted.
Page 19 of 53
For reasons known only to it, however, government failed or
neglected, for almost nine (9) years, to arrest petitioner for
the service of his arresto mayor sentence [which] should not
be taken against petitioner. He was able to successfully
evade service of his sentence for a period longer than the 5-
year prescriptive period of his penalty and, as such, is
entitled to total extinction of his criminal liability.
To say, as was said in Infante, that the prescriptive period of
the penalty never began to run in favor of petitioner because
he never escaped from jail during the service of his sentence
imposes a condition not written in the law. It also violates the
basic principle that the criminal statutes are construed
liberally in favor of the accused and/or convict and is
contrary to the spirit behind or essence of statutes of
limitations [and] prescription, in criminal cases. [10]
The Regional Trial Court based its decision on the case
of Infante v. Warden [11]. In said case, Infante, the petitioner,
was convicted of murder and was sentenced to seventeen
years, four months and one day of reclusion temporal. After
serving fifteen years, seven months and eleven days, he was
granted a conditional pardon. The condition was that he shall
not again violate any of the penal laws of the Philippines.
Ten years after his release on conditional pardon, Infante
was found guilty by a Municipal Court for driving without a
license. Infante was immediately ordered rearrested for
breach of the condition of his pardon. One of the issues
raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had
been recommitted to jail one year and 11 days had
prescribed. xxx [12]
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of
the Revised Penal Code the period of prescription of
penalties commences to run from the date when the culprit
should evade the service of his sentence. It is evident from
this provision that evasion of the sentence is an essential
element of prescription. There has been no such evasion in
this case. Even if there had been one and prescription were
to be applied, its basis would have to be the evasion of the
unserved sentence, and computation could not have started
earlier than the date of the order for the prisoner's
rearrest. [13]
A perusal of the facts in Infante v. Warden reveals that it is
not on all fours with the present case. In Infante, the convict
was on conditional pardon when he was re-arrested. Hence,
he had started serving sentence but the State released him.
In the present case, the convict evaded service of sentence
from the start, and was arrested eight years later.
The RTC decision, however, must stand, since it is in accord
with applicable decisions of this Court. The issue raised by
petitioner is not novel. Article 93 of the Revised Penal
Code [14] has been interpreted several times by the Court.
The case of Tanega v. Masakayan [15] falls squarely within
the issues of the present case. In that case, petitioner

Adelaida Tanega failed to appear on the day of the execution
of her sentence. On the same day, respondent judge issued
a warrant for her arrest. She was never arrested. More than
a year later, petitioner through counsel moved to quash the
warrant of arrest, on the ground that the penalty had
prescribed. Petitioner claimed that she was convicted for a
light offense and since light offenses prescribe in one year,
her penalty had already prescribed. The Court disagreed,
thus:
xxx The period of prescription of penalties the succeeding
Article 93 provides "shall commence to run from the date
when the culprit should evade the service of his sentence".
What then is the concept of evasion of service of sentence?
Article 157 of the Revised Penal Code furnishes the ready
answer. Says Article 157:
"ART. 157. Evasion of service of sentence. The penalty
of prision correccional in its medium and maximum periods
shall be imposed upon any convict who shall evade service
of his sentence by escaping during the term of his
imprisonment by reason of final judgment. xxx"
Elements of evasion of service of sentence are: (1) the
offender is a convict by final judgment; (2) he "is serving his
sentence which consists in deprivation of liberty"; and (3) he
evades service of sentence by escaping during the term of
his sentence. This must be so. For, by the express terms of
the statute, a convict evades "service of his sentence" by
"escaping during the term of his imprisonment by reason of
final judgment." That escape should take place while serving
sentence, is emphasized by the provisions of the second
sentence of Article 157 which provides for a higher penalty
if such "evasion or escape shall have taken place by means
of unlawful entry, by breaking doors, windows, gates, walls,
roofs, or floors, or by using picklocks, false keys, disguise,
deceit, violence or intimidation, or through connivance with
other convicts or employees of the penal institution, . . ."
Indeed, evasion of sentence is but another expression of the
term "jail breaking."
xxx
We, therefore, rule that for prescription of penalty of
imprisonment imposed by final sentence to commence to
run, the culprit should escape during the term of such
imprisonment.
Adverting to the facts, we have here the case of a convict
who sentenced to imprisonment by final judgment was
thereafter never placed in confinement. Prescription of
penalty, then, does not run in her favor. [16]
In Del Castillo v. Torrecampo [17], the Court cited and
reiterated Tanega. Petitioner, Del Castillo, was charged for
violation of Section 178 (nn) of the 1978 Election Code. The
trial court found Del Castillo guilty beyond reasonable doubt
and sentenced him to suffer an indeterminate sentence of
imprisonment of 1 year as minimum to 3 years as maximum.
On appeal the Court of Appeals affirmed the decision of the
trial court in toto. During the execution of judgment on
Page 20 of 53
October 14, 1987, petitioner was not present. The presiding
Judge issued an order of arrest and the confiscation of his
bond. Petitioner was never apprehended. Ten years later,
petitioner filed a motion to quash the warrant of arrest on the
ground that the penalty imposed upon him had already
prescribed. The motion was denied by the trial court. Del
Castillo, on a petition for certiorari to the Court of Appeals,
questioned the denial by the trial court. The Court of Appeals
dismissed the petition for lack of merit. Upon denial of his
Motion for Reconsideration, Del Castillo raised the matter to
this Court. The Court decided against Del Castillo and after
quoting the ratio decidendi of the Court of Appeals in full, it
ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is
consistent with the ruling of this Court in Tanega vs.
Masakayan, et al., where we declared that, for prescription
of penalty imposed by final sentence to commence to run,
the culprit should escape during the term of such
imprisonment.
The Court is unable to find and, in fact, does not perceive
any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the
prescription of penalties shall commence to run. Under said
provision, it shall commence to run from the date the felon
evades the service of his sentence. Pursuant to Article 157
of the same Code, evasion of service of sentence can be
committed only by those who have been convicted by final
judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, "escape" in
legal parlance and for purposes of Articles 93 and 157 of the
RPC means unlawful departure of prisoner from the limits of
his custody. Clearly, one who has not been committed to
prison cannot be said to have escaped therefrom.
In the instant case, petitioner was never brought to prison.
In fact, even before the execution of the judgment for his
conviction, he was already in hiding. Now petitioner begs for
the compassion of the Court because he has ceased to live
a life of peace and tranquility after he failed to appear in
court for the execution of his sentence. But it was petitioner
who chose to become a fugitive. The Court accords
compassion only to those who are deserving. Petitioner's
guilt was proven beyond reasonable doubt but he refused to
answer for the wrong he committed. He is therefore not to
be rewarded therefor.
The assailed decision of the Court of Appeals is based on
settled jurisprudence and applicable laws. It did not engage
in judicial legislation but correctly interpreted the pertinent
laws. Because petitioner was never placed in confinement,
prescription never started to run in his favor. [18]
Consistent with the two cases cited above, this Court
pronounces that the prescription of penalties found in Article
93 of the Revised Penal Code, applies only to those who are
convicted by final judgment and are serving sentence which

consists in deprivation of liberty. The period for prescription
of penalties begins only when the convict evades service of
sentence by escaping during the term of his sentence. Since
petitioner never suffered deprivation of liberty before his
arrest on January 20, 2000 and as a consequence never
evaded sentence by escaping during the term of his service,
the period for prescription never began.
Petitioner, however, has by this time fully served his
sentence of two months and one day of arresto mayor and
should forthwith be released unless he is being detained for
another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of
Angeles City, Branch 56 is AFFIRMED, but petitioner is
ordered released effective immediately for having fully
served his sentence unless he is detained for another
offense or charge.
No costs.
SO ORDERED.
----------------------------------XXX------------------------------------
THIRD DIVISION
[G.R. No. 139033. December 18, 2002]
JOVENDO DEL CASTILLO, petitioner, vs. HON.
ROSARIO TORRECAMPO, Presiding Judge, RTC
of Camarines Sur, Branch 33 and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
CORONA, J.:
The instant petition is one for the review, by way of appeal
by certiorari, of the Decision [1] of the Court of Appeals dated
November 20, 1998, and of the Resolution dated June 14,
1999 denying the motion for reconsideration thereof.
Petitioner was charged on March 8, 1983 with violation of
Section 178 (nn) [2] of the 1978 Election Code in Criminal
Case No. F-1447 before Branch 33, Regional Trial Court,
Camarines Sur. The Information alleged:
That on May 17, 1982, (Barangay Election Day), at around
8:15 P.M. in Barangay Ombao, Municipality of Bula,
Province of Camarines Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused did, then and there unlawfully conducted himself in
a disorderly manner, by striking the electric bulb and two (2)
kerosene petromax lamps lighting the room where voting
center no. 24 is located, during the counting of the votes in
said voting center plunging the room in complete darkness,
thereby interrupting and disrupting the proceedings of the
Board of Election Tellers. [3]
On arraignment, petitioner pleaded not guilty. Thereafter,
trial on the merits ensued.
On January 14, 1985, the trial court rendered judgment and
declared petitioner guilty beyond reasonable doubt of
Page 21 of 53
violating Section 178 (nn) of PD 1296, otherwise known as
the 1978 Election Code, as amended, and sentenced
petitioner to suffer the indeterminate penalty of
imprisonment of 1 year as minimum to 3 years as maximum.
Aggrieved, petitioner appealed his conviction to the Court of
Appeals which eventually affirmed the decision of the trial
court in toto. Said decision became final and
executory. Thus, the execution of judgment was scheduled
on October 14, 1987.
On October 12, 1987, an urgent motion to reset the
execution of judgment was submitted by petitioner through
his counsel. But it was denied for lack of merit.
During the execution of judgment, petitioner failed to appear
which prompted the presiding judge to issue an order of
arrest of petitioner and the confiscation of his
bond. However, petitioner was never apprehended. He
remained at large.
Ten years later, on October 24, 1997, petitioner filed before
the trial court a motion to quash the warrant issued for his
arrest on the ground of prescription of the penalty imposed
upon him. However, it was denied. His motion for
reconsideration thereof was likewise denied.
Dissatisfied, petitioner filed with the Court of Appeals a
Petition for Certiorari assailing the orders of the trial court
denying both his motion to quash the warrant of arrest and
motion for reconsideration.
On November 20, 1998, the Court of Appeals rendered its
now assailed decision dismissing the petition for lack of
merit.
Following the denial of his motion for reconsideration, the
instant petition was filed before us.
Petitioner asserts that the Court of Appeals gravely erred in
holding that the penalty imposed upon petitioner has not
prescribed. Petitioner maintains that Article 93 of the
Revised Penal Code provides that the period of prescription
shall commence to run from the date when the culprit should
evade the service of his sentence. The Court of Appeals, in
its interpretation of the said provision, engaged in judicial
legislation when it added the phrase by escaping during the
term of the sentence thereto, so petitioner claims.
Going over the merits of the petition, the Court finds that the
Court of Appeals did not err in dismissing the petition for
certiorari.
The threshold issue in the instant case is the interpretation
of Article 93 of the Revised Penal Code in relation to Article
157 of the same Code.
In dismissing the petition, the Court of Appeals ruled:
Article 92 of the Revised Penal Code provides as follows:
When and how penalties prescribe The penalties imposed
by the final sentence prescribed as follows:

1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of
the penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
And Article 93 of the Revised Penal Code, provides as
follows:
Computation of the prescription of penalties The period of
prescription of penalties shall commence to run from the
date when the culprit should evade the service of his
sentence, and it shall be interrupted if the defendant should
give himself up, be captured, should go to some foreign
country with which his Government has no extradition treaty,
or should commit another crime before the expiration of the
period of prescription.
The penalty imposed upon the petitioner is one (1) year of
imprisonment as minimum to three (3) years of imprisonment
as maximum.
The law under which the petitioner was convicted is a special
law, the 1978 Election Code. This law does not provide for
the prescription of penalties. This being the case, We have
to apply the provision of the Revised Penal Code which
allows the application of said code in suppletory character
when it provides that:
Offenses which are or in the future may be punishable under
special laws are not subject to the provision of this code.
This code shall be supplementary to such laws, unless the
latter should specially provide the contrary.
The penalty imposed upon the petitioner is a correctional
penalty under Article 25 in relation to Article 27 of the
Revised Penal Code. Being a correctional penalty it
prescribed in ten (10) years.
The petitioner was convicted by a final judgment on June 14,
1986. Such judgment would have been executed on October
14, 1986 but the accused did not appear for such
proceeding. And he has never been apprehended.
The contention of the petitioner is that said judgment
prescribed on October 24, 1996.
The issue here is whether or not the penalty imposed upon
the petitioner has prescribed.
The elements in order that the penalty imposed has
prescribed are as follows:
1. That the penalty is imposed by final sentence.
2. That the convict evaded the service of the sentence by
escaping during the term of his sentence.
3. That the convict who escaped from prison has not given
himself up, or been captured, or gone to a foreign country
Page 22 of 53
with which we have no extradition treaty or committed
another crime.
4. That the penalty has prescribed, because of the lapse of
time form the date of the evasion of the service of the
sentence by the convict.
(p. 93, Revised Penal Code by L. Reyes 93 ed.)
From the foregoing elements, it is clear that the penalty
imposed has not prescribed because the circumstances of
the case at bench failed to satisfy the second element, to wit
That the convict evaded the service of the sentence by
escaping during the service of his sentence. As a matter of
fact, the petitioner never served a single minute of his
sentence.
The foregoing conclusion of the Court of Appeals is
consistent with the ruling of this Court in Tanega vs.
Masakayan, et. al.,[4] where we declared that, for
prescription of penalty imposed by final sentence to
commence to run, the culprit should escape during the term
of such imprisonment.
The Court is unable to find and, in fact, does not perceive
any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the
prescription of penalties shall commence to run. Under said
provision, it shall commence to run from the date the felon
evades the service of his sentence. Pursuant to Article 157
of the same Code, evasion of service of sentence can be
committed only by those who have been convicted by final
judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, escape in
legal parlance and for purposes of Articles 93 and 157 of the
RPC means unlawful departure of prisoner from the limits of
his custody. Clearly, one who has not been committed to
prison cannot be said to have escaped therefrom.
In the instant case, petitioner was never brought to prison. In
fact, even before the execution of the judgment for his
conviction, he was already in hiding. Now petitioner begs for
the compassion of the Court because he has ceased to live
a life of peace and tranquility after he failed to appear in
court for the execution of his sentence. But it was petitioner
who chose to become a fugitive. The Court accords
compassion only to those who are deserving. Petitioners
guilt was proven beyond reasonable doubt but he refused to
answer for the wrong he committed. He is therefore not to
be rewarded therefor.
The assailed decision of the Court of Appeals is based on
settled jurisprudence and applicable laws. It did not engage
in judicial legislation but correctly interpreted the pertinent
laws. Because petitioner was never placed in confinement,
prescription never started to run in his favor.
WHEREFORE, for lack of merit, the petition is hereby
DENIED.

SO ORDERED.
------------------------------------XXX-----------------------------------
EN BANC
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO
ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under
Rule 64, in relation to Rule 65, both of the Revised Rules of
Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which
essentially prays for the issuance of the writ of certiorari
annulling and setting aside the April 1, 2013 1 and April 23,
2013 2 Resolutions of the Commission on Elections
(COMELEC), Second Division and En bane, respectively, in
SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v.
Joseph Ejercito Estrada" for having been rendered with
grave abuse of discretion amounting to lack or excess of
jurisdiction; and (2) a Petition-in-Intervention 3 filed by
Alfredo S. Lim (Lim), wherein he prays to be declared the
2013 winning candidate for Mayor of the City of Manila in
view of private respondent former President Joseph Ejercito
Estrada’s (former President Estrada) disqualification to run
for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted
former President Estrada, a former President of the Republic
of the Philippines, for the crime of plunder in Criminal Case
No. 26558, entitled "People of the Philippines v. Joseph
Ejercito Estrada, et al." The dispositive part of the graft
court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered in Criminal Case No. 26558 finding the
accused, Former President Joseph Ejercito Estrada,
GUILTY beyond reasonable doubt of the crime of
PLUNDER, defined in and penalized by Republic Act No.
7080, as amended. On the other hand, for failure of the
prosecution to prove and establish their guilt beyond
reasonable doubt, the Court finds the accused Jose
"Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY
of the crime of plunder, and accordingly, the Court hereby
orders their ACQUITTAL.
The penalty imposable for the crime of plunder under
Republic Act No. 7080, as amended by Republic Act No.
7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the
lesser penalty shall be applied in accordance with Article 63
of the Revised Penal Code. Accordingly, the accused
Page 23 of 53
Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua and
the accessory penalties of civil interdiction during the period
of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph
Ejercito Estrada has been under detention shall be credited
to him in full as long as he agrees voluntarily in writing to
abide by the same disciplinary rules imposed upon convicted
prisoners.
Moreover, in accordance with Section 2 of Republic Act No.
7080, as amended by Republic Act No. 7659, the Court
hereby declares the forfeiture in favor of the government of
the following:
(1) The total amount of Five Hundred Forty[-]Two Million
Seven Hundred Ninety[-]One Thousand Pesos
(₱545,291,000.00), with interest and income earned,
inclusive of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of
the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos
(₱189,000,000.00), inclusive of interests and income
earned, deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed
as "Boracay Mansion" located at #100 11th Street, New
Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada
and Atty. Edward S. Serapio are hereby ordered cancelled
and released to the said accused or their duly authorized
representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual
accounting and auditing procedures. Likewise, the hold-
departure orders issued against the said accused are hereby
recalled and declared functus oficio. 4
On October 25, 2007, however, former President Gloria
Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former President
Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing
inmates who have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under
detention for six and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed
to no longer seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred
upon me by the Constitution, I hereby grant executive
clemency to JOSEPH EJERCITO ESTRADA, convicted by

the Sandiganbayan of Plunder and imposed a penalty of
Reclusion Perpetua. He is hereby restored to his civil and
political rights.
The forfeitures imposed by the Sandiganbayan remain in
force and in full, including all writs and processes issued by
the Sandiganbayan in pursuance hereof, except for the bank
account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO
ESTRADA, this pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day of
October, in the year of Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary 5
On October 26, 2007, at 3:35 p.m., former President Estrada
"received and accepted" 6 the pardon by affixing his
signature beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a
Certificate of Candidacy 7 for the position of President.
During that time, his candidacy earned three oppositions in
the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny
Due Course and Cancel Certificate of Candidacy" filed by
Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028
(DC), a petition for "Disqualification as Presidential
Candidate" filed by Evilio C. Pormento (Pormento); and (3)
SPA No. 09-104 (DC), a "Petition to Disqualify Estrada
Ejercito, Joseph M.from Running as President due to
Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada.
In separate Resolutions 8 dated January 20, 2010 by the
COMELEC, Second Division, however, all three petitions
were effectively dismissed on the uniform grounds that (i)
the Constitutional proscription on reelection applies to a
sitting president; and (ii) the pardon granted to former
President Estrada by former President Arroyo restored the
former’s right to vote and be voted for a public office. The
subsequent motions for reconsideration thereto were denied
by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized
elections, however, former President Estrada only managed
to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for
certiorari, which was docketed as G.R. No. 191988, entitled
"Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada
and Commission on Elections." But in a Resolution 9 dated
August 31, 2010, the Court dismissed the aforementioned
petition on the ground of mootness considering that former
President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more
ventured into the political arena, and filed a Certificate of
Page 24 of 53
Candidacy, 10 this time vying for a local elective post, that
ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case,
filed a Petition for Disqualification against former President
Estrada before the COMELEC. The petition was docketed as
SPA No. 13-211 (DC). Risos Vidal anchored her petition on
the theory that "[Former President Estrada] is Disqualified to
Run for Public Office because of his Conviction for Plunder
by the Sandiganbayan in Criminal Case No. 26558 entitled
‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion
Perpetuawith Perpetual Absolute Disqualification." 11 She
relied on Section 40 of the Local Government Code (LGC),
in relation to Section 12 of the Omnibus Election Code
(OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one
(1) year or more of imprisonment, within two (2) years after
serving sentence; (b) Those removed from office as a result
of an administrative case;
(c) Those convicted by final judgment for violating the oath
of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases
here or abroad;
(f) Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion, or for any offense for which he has
been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any public office, unless he
has been given plenary pardon or granted amnesty.
(Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second
Division, dismissed the petition for disqualification, the fallo
of which reads:
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for utter lack of merit. 12
The COMELEC, Second Division, opined that "[h]aving
taken judicial cognizance of the consolidated resolution for
SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10

May 2010 En Banc resolution affirming it, this Commission
will not be labor the controversy further. Moreso, [Risos-
Vidal] failed to present cogent proof sufficient to reverse the
standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek
public office has been effectively restored by the pardon
vested upon him by former President Gloria M. Arroyo. Since
this Commission has already spoken, it will no longer
engage in disquisitions of a settled matter lest indulged in
wastage of government resources." 13
The subsequent motion for reconsideration filed by Risos-
Vidal was denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s
jurisdiction by filing the present petition. She presented five
issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT RESPONDENT
ESTRADA’S PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT
ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF
MANILA UNDER SEC. 40 OF THE LOCAL
GOVERNMENTCODE OF 1991 FOR HAVING BEEN
CONVICTED OF PLUNDER, AN OFFENSE INVOLVING
MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DISMISSING THE
PETITION FOR DISQUALIFICATION ON THE GROUND
THAT THE CASE INVOLVES THE SAME OR SIMILAR
ISSUES IT ALREADY RESOLVED IN THE CASES OF
"PORMENTO VS. ESTRADA", SPA NO. 09-028 (DC) AND
IN "RE: PETITION TO DISQUALIFY ESTRADA EJERCITO,
JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA
NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADA’S PARDON NEITHER
RESTORED HIS RIGHT OF SUFFRAGE NOR REMITTED
HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM
SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT HAVING EXERCISED ITS POWER
TO MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC OFFICE
BECAUSE OF HIS PERPETUAL AND ABSOLUTE
DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO
VOTE RESULTING FROM HIS CRIMINAL CONVICTION
FOR PLUNDER. 14
Page 25 of 53
While this case was pending before the Court, or on May 13,
2013, the elections were conducted as scheduled and
former President Estrada was voted into office with 349,770
votes cast in his favor. The next day, the local board of
canvassers proclaimed him as the duly elected Mayor of the
City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s
opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the Court
in a Resolution 15 dated June 25, 2013. Lim subscribed to
Risos-Vidal’s theory that former President Estrada is
disqualified to run for and hold public office as the pardon
granted to the latter failed to expressly remit his perpetual
disqualification. Further, given that former President Estrada
is disqualified to run for and hold public office, all the votes
obtained by the latter should be declared stray, and, being
the second placer with 313,764 votes to his name, he (Lim)
should be declared the rightful winning candidate for the
position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for
resolution, the petition filed by Risos-Vidal actually presents
only one essential question for resolution by the Court, that
is, whether or not the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in ruling
that former President Estrada is qualified to vote and be
voted for in public office as a result of the pardon granted to
him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing
out that the pardon granted to former President Estrada was
conditional as evidenced by the latter’s express acceptance
thereof. The "acceptance," she claims, is an indication of the
conditional nature of the pardon, with the condition being
embodied in the third Whereas Clause of the pardon, i.e.,
"WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office."
She explains that the aforementioned commitment was what
impelled former President Arroyo to pardon former President
Estrada, without it, the clemency would not have been
extended. And any breach thereof, that is, when former
President Estrada filed his Certificate of Candidacy for
President and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be recommitted
to prison to serve the unexpired portion of his sentence x x
x and disqualifies him as a candidate for the mayoralty
[position] of Manila." 16
Nonetheless, Risos-Vidal clarifies that the fundamental
basis upon which former President Estrada must be
disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the
LGC, in relation to Section 12 of the OEC. She argues that
the crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral
turpitude; such that former President Estrada must be
disqualified to run for and hold public elective office.

Even with the pardon granted to former President Estrada,
however, Risos-Vidal insists that the same did not operate
to make available to former President Estrada the exception
provided under Section 12 of the OEC, the pardon being
merely conditional and not absolute or plenary. Moreover,
Risos-Vidal puts a premium on the ostensible requirements
provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon. (Emphases
supplied.)
She avers that in view of the foregoing provisions of law, it
is not enough that a pardon makes a general statement that
such pardon carries with it the restoration of civil and political
rights. By virtue of Articles 36 and 41, a pardon restoring civil
and political rights without categorically making mention
what specific civil and political rights are restored "shall not
work to restore the right to hold public office, or the right of
suffrage; nor shall it remit the accessory penalties of civil
interdiction and perpetual absolute disqualification for the
principal penalties of reclusion perpetua and reclusion
temporal." 17 In other words, she considers the above
constraints as mandatory requirements that shun a general
or implied restoration of civil and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate
Justices Teodoro R. Padilla and Florentino P. Feliciano in
Monsanto v. Factoran, Jr. 18 to endorse her position that
"[t]he restoration of the right to hold public office to one who
has lost such right by reason of conviction in a criminal case,
but subsequently pardoned, cannot be left to inference, no
matter how intensely arguable, but must be stated in
express, explicit, positive and specific language."
Applying Monsantoto former President Estrada’s case,
Risos-Vidal reckons that "such express restoration is further
demanded by the existence of the condition in the [third]
[W]hereas [C]lause of the pardon x x x indubitably indicating
that the privilege to hold public office was not restored to
him." 19
On the other hand, the Office ofthe Solicitor General (OSG)
for public respondent COMELEC, maintains that "the issue
Page 26 of 53
of whether or not the pardon extended to [former President
Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way
back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and
09-104, there is no cogent reason for it to reverse its
standing pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of the
City of Manila in the absence of any new argument that
would warrant its reversal. To be sure, public respondent
COMELEC correctly exercised its discretion in taking judicial
cognizance of the aforesaid rulings which are known to it and
which can be verified from its own records, in accordance
with Section 2, Rule 129 of the Rules of Court on the courts’
discretionary power to take judicial notice of matters which
are of public knowledge, or are capable of unquestionable
demonstration, or ought to be known to them because of
their judicial functions." 20
Further, the OSG contends that "[w]hile at first glance, it is
apparent that [former President Estrada’s] conviction for
plunder disqualifies him from running as mayor of Manila
under Section 40 of the [LGC], the subsequent grant of
pardon to him, however, effectively restored his right to run
for any public office." 21 The restoration of his right to run for
any public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12 of the
OEC. As to the seeming requirement of Articles 36 and 41
of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid
interpretation of Article 36 and Article 41 of the [RPC] x x x
would be stretching too much the clear and plain meaning of
the aforesaid provisions." 22 Lastly, taking into consideration
the third Whereas Clause of the pardon granted to former
President Estrada, the OSG supports the position that it "is
not an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity." 23
Thus, the OSG concludes that the "COMELEC did not
commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed Resolutions." 24
For his part, former President Estrada presents the following
significant arguments to defend his stay in office: that "the
factual findings of public respondent COMELEC, the
Constitutional body mandated to administer and enforce all
laws relative to the conduct of the elections, [relative to the
absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective
office] are binding [and conclusive] on this Honorable
Supreme Court;" that he "was granted an absolute pardon
and thereby restored to his full civil and political rights,
including the right to seek public elective office such as the
mayoral (sic) position in the City of Manila;" that "the majority
decision in the case of Salvacion A. Monsanto v. Fulgencio
S. Factoran, Jr.,which was erroneously cited by both Vidal
and Lim as authority for their respective claims, x x x reveal
that there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged necessity
for an expressed restoration of the ‘right to hold public office

in the pardon’ as a legal prerequisite to remove the subject
perpetual special disqualification;" that moreover, the
"principal question raised in this Monsanto case is whether
or not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to reinstatement to
her former position without need of a new appointment;" that
his "expressed acceptance [of the pardon] is not proof that
the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the cases filed
against him during his candidacy for President back in 2009-
2010; that Articles 36 and 41 of the Revised Penal Code
"cannot abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that the
text of the pardon granted to him substantially, if not fully,
complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said
document that he was "restored to his civil and political
rights;" that since pardon is an act of grace, it must be
construed favorably in favor of the grantee; 25 and that his
disqualification will result in massive disenfranchisement of
the hundreds of thousands of Manileños who voted for him. 26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon
that fully restored allhis civil and political rights, which
naturally includes the right to seek public elective office, the
focal point of this controversy. The wording of the pardon
extended to former President Estrada is complete,
unambiguous, and unqualified. It is likewise unfettered by
Articles 36 and 41 of the Revised Penal Code. The only
reasonable, objective, and constitutional interpretation of the
language of the pardon is that the same in fact conforms to
Articles 36 and 41 of the Revised Penal Code. Recall that
the petition for disqualification filed by Risos-Vidal against
former President Estrada, docketed as SPA No. 13-211
(DC), was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of a
crime punishable by imprisonment of one year or more, and
involving moral turpitude, former President Estrada must be
disqualified to run for and hold public elective office
notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing "[h]e is hereby restored to
his civil and political rights." Risos-Vidal theorizes that
former President Estrada is disqualified from running for
Mayor of Manila in the May 13, 2013 Elections, and remains
disqualified to hold any local elective post despite the
presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not
expressly provide for the remission of the penalty of
perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote and
be voted upon for public office. She invokes Articles 36 and
41 of the Revised Penal Code as the foundations of her
theory.
It is insisted that, since a textual examination of the pardon
given to and accepted by former President Estrada does not
Page 27 of 53
actually specify which political right is restored, it could be
inferred that former President Arroyo did not deliberately
intend to restore former President Estrada’s rights of
suffrage and to hold public office, orto otherwise remit the
penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based
on the pardon’s text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII
and Section 5 of Article IX-C, provides that the President of
the Philippines possesses the power to grant pardons, along
with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable
recommendation of the Commission.
It is apparent from the foregoing constitutional provisions
that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2)
cases that have not yet resulted in a final conviction; and (3)
cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation
coming from the COMELEC. Therefore, it can be argued that
any act of Congress by way of statute cannot operate to
delimit the pardoning power of the President.
In Cristobal v. Labrador 27 and Pelobello v. Palatino, 28 which
were decided under the 1935 Constitution, wherein the
provision granting pardoning power to the President shared
similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that
"subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by
legislative action." The Court reiterated this pronouncement
in Monsanto v. Factoran, Jr. 29 thereby establishing that,
under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by
legislative action." Thus, it is unmistakably the long-standing
position of this Court that the exercise of the pardoning
power is discretionary in the President and may not be
interfered with by Congress or the Court, except only when
it exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the
President’s power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by

an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out
an exception from the pardoning power of the President in
the form of "offenses involving graft and corruption" that
would be enumerated and defined by Congress through the
enactment of a law. The following is the pertinent portion
lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized
to introduce an amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for
violations of corrupt practices laws may be limited by
legislation.
I suggest that this be deleted on the grounds that, first,
violations of corrupt practices may include a very little
offense like stealing ₱10; second, which I think is more
important, I get the impression, rightly or wrongly, that
subconsciously we are drafting a constitution on the premise
that all our future Presidents will be bad and dishonest and,
consequently, their acts will be lacking in wisdom. Therefore,
this Article seems to contribute towards the creation of an
anti-President Constitution or a President with vast
responsibilities but no corresponding power except to
declare martial law. Therefore, I request that these lines be
deleted.
MR. REGALADO. Madam President, may the Committee
react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution
of Commissioner Davide because of the fact that similar to
the provisions on the Commission on Elections, the
recommendation of that Commission is required before
executive clemency is granted because violations of the
election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we
felt that it is also necessary to have that subjected to the
same condition because violation of our Corrupt Practices
Law may be of such magnitude as to affect the very
economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress
that will provide for the classification as to which convictions
will still require prior recommendation; after all, the
Congress could take into account whether or not the
violation of the Corrupt Practices Law is of such magnitude
as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in
its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the
exercise of executive clemency because, of course, there is
a whale of a difference if we consider a lowly clerk
committing malversation of government property or funds
involving one hundred pesos. But then, we also anticipate
Page 28 of 53
the possibility that the corrupt practice of a public officer is
of such magnitude as to have virtually drained a substantial
portion of the treasury, and then he goes through all the
judicial processes and later on, a President who may have
close connections with him or out of improvident compassion
may grant clemency under such conditions. That is why we
left it to Congress to provide and make a classification based
on substantial distinctions between a minor act of corruption
or an act of substantial proportions. SR. TAN. So, why do we
not just insert the word GROSS or GRAVE before the word
"violations"?
MR. REGALADO. We feel that Congress can make a better
distinction because "GRAVE" or "GROSS" can be
misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed
amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is
essentially an executive power, and that is precisely why it
is called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude
into this prerogative of the executive. Then it limits the power
of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the power
of Congress to only corrupt practices laws. There are many
other crimes more serious than these. Under this
amendment, Congress cannot limit the power of executive
clemency in cases of drug addiction and drug pushing which
are very, very serious crimes that can endanger the State;
also, rape with murder, kidnapping and treason. Aside from
the fact that it is a derogation of the power of the President
to grant executive clemency, it is also defective in that it
singles out just one kind of crime. There are far more serious
crimes which are not included.
MR. REGALADO. I will just make one observation on that.
We admit that the pardoning power is anexecutive power.
But even in the provisions on the COMELEC, one will notice
that constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any
violation of election laws.
At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee, has
explained in the committee meetings we had why he sought
the inclusion of this particular provision. May we call on
Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the
proposal. We have just approved the Article on

Accountability of Public Officers. Under it, it is mandated that
a public office is a public trust, and all government officers
are under obligation to observe the utmost of responsibility,
integrity, loyalty and efficiency, to lead modest lives and to
act with patriotism and justice.
In all cases, therefore, which would go into the very core of
the concept that a public office is a public trust, the violation
is itself a violation not only of the economy but the moral
fabric of public officials. And that is the reason we now want
that if there is any conviction for the violation of the Anti-
Graft and Corrupt Practices Act, which, in effect, is a
violation of the public trust character of the public office, no
pardon shall be extended to the offender, unless some
limitations are imposed.
Originally, my limitation was, it should be with the
concurrence of the convicting court, but the Committee left
it entirely to the legislature to formulate the mechanics at
trying, probably, to distinguish between grave and less grave
or serious cases of violation of the Anti-Graft and Corrupt
Practices Act. Perhaps this is now the best time, since we
have strengthened the Article on Accountability of Public
Officers, to accompany it with a mandate that the President’s
right to grant executive clemency for offenders or violators
of laws relating to the concept of a public office may be
limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion.
Madam President, over and over again, we have been
saying and arguing before this Constitutional Commission
that we are emasculating the powers of the presidency, and
this provision to me is another clear example of that. So, I
speak against this provision. Even the 1935 and the 1973
Constitutions do not provide for this kind of provision.
I am supporting the amendment by deletion of Commissioner
Tan.
MR. ROMULO. Commissioner Tingson would like to be
recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the
amendment by deletion because I am in sympathy with the
stand of Commissioner Francisco "Soc" Rodrigo. I do
believe and we should remember that above all the elected
or appointed officers of our Republic, the leader is the
President. I believe that the country will be as the President
is, and if we systematically emasculate the power of this
presidency, the time may come whenhe will be also
handcuffed that he will no longer be able to act like he should
be acting.
So, Madam President, I am in favor of the deletion of this
particular line.
Page 29 of 53
MR. ROMULO. Commissioner Colayco would like to be
recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to
recommend the approval of proposals, but now I find that the
proposal of Commissioner Tan is worthy of approval of this
body.
Why are we singling out this particular offense? There are
other crimes which cast a bigger blot on the moral character
of the public officials.
Finally, this body should not be the first one to limit the
almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the sentence
rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if
this is allowed to stay, it would mean that the President’s
power togrant pardon or reprieve will be limited to the cases
decided by the Anti-Graft Court, when as already stated,
there are many provisions inthe Revised Penal Code that
penalize more serious offenses.
Moreover, when there is a judgment of conviction and the
case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal Code
the judge will recommend such exercise of clemency. And
so, I am in favor of the amendment proposed by
Commissioner Tan for the deletion of this last sentence in
Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor
Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will
again chip more powers from the President. In case of other
criminals convicted in our society, we extend probation to
them while in this case, they have already been convicted
and we offer mercy. The only way we can offer mercy to
them is through this executive clemency extended to them
by the President. If we still close this avenue to them, they
would be prejudiced even worse than the murderers and the
more vicious killers in our society. I do not think they deserve
this opprobrium and punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner
Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President,
prefers to submit this to the floor and also because of the
objection of the main proponent, Commissioner Davide. So
we feel that the Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed
amendment of Commissioner Tan to delete the last sentence
of Section 17 appearing on lines 7, 8 and 9, please raise
their hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few
Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the
amendment is approved. 30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that
Articles 36 and 41 of the Revised Penal Code cannot, in any
way, serve to abridge or diminish the exclusive power and
prerogative of the President to pardon persons convicted of
violating penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation
that the said Articles contain specific textual commands
which must be strictly followed in order to free the
beneficiary of presidential grace from the disqualifications
specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code
provides:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon. (Emphases
supplied.)
Page 30 of 53
A rigid and inflexible reading of the above provisions of law,
as proposed by Risos-Vidal, is unwarranted, especially so if
it will defeat or unduly restrict the power of the President to
grant executive clemency.
It is well-entrenched in this jurisdiction that where the words
of a statute are clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without attempted
interpretation. Verba legis non est recedendum. From the
words of a statute there should be no departure. 31 It is this
Court’s firm view that the phrase in the presidential pardon
at issue which declares that former President Estrada "is
hereby restored to his civil and political rights" substantially
complies with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with
Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public
office in the pardon granted to former President Estrada, as
required by Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned
codal provisions must be followed by the President, as they
do not abridge or diminish the President’s power to extend
clemency. He opines that they do not reduce the coverage
of the President’s pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention
or form. They only provide a procedural prescription. They
are not concerned with areas where or the instances when
the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other
governmental instrumentality needs to intervene to give it full
effect.
All that Articles 36 and 41 do is prescribe that, if the
President wishes to include in the pardon the restoration of
the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute
disqualification, he or she should do so expressly. Articles
36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains the
power to make such restoration or remission, subject to a
prescription on the manner by which he or she is to state it. 32
With due respect, I disagree with the overbroad statement
that Congress may dictate as to how the President may
exercise his/her power of executive clemency. The form or
manner by which the President, or Congress for that matter,
should exercise their respective Constitutional powers or
prerogatives cannot be interfered with unless it is so
provided in the Constitution. This is the essence of the
principle of separation of powers deeply ingrained in our
system of government which "ordains that each of the three
great branches of government has exclusive cognizance of
and is supreme in matters falling within its own
constitutionally allocated sphere." 33 More so, this
fundamental principle must be observed if noncompliance
with the form imposed by one branch on a co-equal and

coordinate branch will result into the diminution of an
exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal
Code should be construed in a way that will give full effect
to the executive clemency granted by the President, instead
of indulging in an overly strict interpretation that may serve
to impair or diminish the import of the pardon which
emanated from the Office of the President and duly signed
by the Chief Executive himself/herself. The said codal
provisions must be construed to harmonize the power of
Congress to define crimes and prescribe the penalties for
such crimes and the power of the President to grant
executive clemency. All that the said provisions impart is that
the pardon of the principal penalty does not carry with it the
remission of the accessory penalties unless the President
expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant
executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or
to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the
penalties imposed in accordance with law.
A close scrutiny of the text of the pardon extended to former
President Estrada shows that both the principal penalty of
reclusion perpetua and its accessory penalties are included
in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was
convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal
penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that "(h)e is hereby
restored to his civil and political rights," expressly remitted
the accessory penalties that attached to the principal penalty
of reclusion perpetua. Hence, even if we apply Articles 36
and 41 of the Revised Penal Code, it is indubitable from the
text of the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were
expressly remitted together with the principal penalty of
reclusion perpetua.
In this jurisdiction, the right to seek public elective office is
recognized by law as falling under the whole gamut of civil
and political rights.
Section 5 of Republic Act No. 9225, 34 otherwise known as
the "Citizenship Retention and Reacquisition Act of 2003,"
reads as follows:
Section 5. Civil and Political Rights and Liabilities.– Those
who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws
of the Philippines and the following conditions: (1) Those
intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;
Page 31 of 53
(2) Those seeking elective public office in the Philippines
shall meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer
an oath;
(3) Those appointed to any public office shall subscribe and
swear an oath of allegiance to the Republic of the Philippines
and its duly constituted authorities prior to their assumption
of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath; (4)
Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license
or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended
to, those who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or
noncommissioned officers in the armed forces of the country
which they are naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political
Rights, to which the Philippines is a signatory, acknowledges
the existence of said right. Article 25(b) of the Convention
states: Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in Article 2 and without
unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections
which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the
will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on
Elections, 35 the Court unequivocally referred to the right to
seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for elective
office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the
operative act that restores their right to run for public office.
The petitioner’s failure to comply there with in accordance
with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she
executed on September 18, 2006. As such, she is yet to
regain her political right to seek elective office. Unless she
executes a sworn renunciation of her Australian citizenship,
she is ineligible to run for and hold any elective office in the
Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek
public elective office is unequivocally considered as a

political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted tohim, he
regained his FULL civil and political rights – including the
right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond
the plain meaning of said penal provisions; and prescribes a
formal requirement that is not only unnecessary but, if
insisted upon, could be in derogation of the constitutional
prohibition relative to the principle that the exercise of
presidential pardon cannot be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring
opinions in Monsanto v. Factoran, Jr. 36 to justify her
argument that an absolute pardon must expressly state that
the right to hold public office has been restored, and that the
penalty of perpetual absolute disqualification has been
remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although
the learned views of Justices Teodoro R. Padilla and
Florentino P. Feliciano are to be respected, they do not form
partof the controlling doctrine nor to be considered part of
the law of the land. On the contrary, a careful reading of the
majority opinion in Monsanto, penned by no less than Chief
Justice Marcelo B. Fernan, reveals no statement that
denotes adherence to a stringent and overly nuanced
application of Articles 36 and 41 of the Revised Penal Code
that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even
if the intent of the President can otherwise be deduced from
the text or words used in the pardon. Furthermore, as
explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under
Section 40 of the LGC in relation to Section 12 of the OEC
was removed by his acceptance of the absolute pardon
granted to him.
Section 40 of the LGC identifies who are disqualified from
running for any elective local position. Risos-Vidal argues
that former President Estrada is disqualified under item (a),
to wit:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one
(1) year or more of imprisonment, within two (2) years after
serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar
prohibitions, but it provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been
given plenary pardon or granted amnesty. (Emphasis
supplied.)
Page 32 of 53
As earlier stated, Risos-Vidal maintains that former
President Estrada’s conviction for plunder disqualifies him
from running for the elective local position of Mayor of the
City of Manila under Section 40(a) of the LGC. However, the
subsequent absolute pardon granted to former President
Estrada effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a) of the
LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section
40(a) of the LGC is worded in absolute terms, Section 12 of
the OEC provides a legal escape from the prohibition – a
plenary pardon or amnesty. In other words, the latter
provision allows any person who has been granted plenary
pardon or amnesty after conviction by final judgment of an
offense involving moral turpitude, inter alia, to run for and
hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to
candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on
Elections, 37 the Court acknowledged the aforementioned
provision as one of the legal remedies that may be availed
of to disqualify a candidate in a local election filed any day
after the last day for filing of certificates of candidacy, but
not later than the date of proclamation. 38 The pertinent ruling
in the Jalosjos case is quoted as follows:
What is indisputably clear is that false material
representation of Jalosjos is a ground for a petition under
Section 78. However, since the false material representation
arises from a crime penalized by prision mayor, a petition
under Section 12 ofthe Omnibus Election Code or Section
40 of the Local Government Code can also be properly filed.
The petitioner has a choice whether to anchor his petition on
Section 12 or Section 78 of the Omnibus Election Code, or
on Section 40 of the Local Government Code. The law
expressly provides multiple remedies and the choice of
which remedy to adopt belongs to petitioner. 39 (Emphasis
supplied.)
The third preambular clause of the pardon did not operate to
make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito
Estrada has publicly committed to no longer seek any
elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that former
President Estrada’s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the unqualified
use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential
part of an act as it is an introductory or preparatory clause
that explains the reasons for the enactment, usually
introduced by the word "whereas." 40 Whereas clauses do not
form part of a statute because, strictly speaking, they are not
part of the operative language of the statute. 41 In this case,

the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone
operate to make the pardon conditional or to make its
effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the
pardon.
On this matter, the Court quotes with approval a relevant
excerpt of COMELEC Commissioner Maria Gracia Padaca’s
separate concurring opinion in the assailed April 1, 2013
Resolution of the COMELEC in SPA No. 13-211 (DC), which
captured the essence of the legal effect of preambular
paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular
paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office." On this contention, the
undersigned reiterates the ruling of the Commission that the
3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon extended
by former President Arroyo to herein Respondent. This
ruling is consistent with the traditional and customary usage
of preambular paragraphs. In the case of Echegaray v.
Secretary of Justice, the Supreme Court ruled on the legal
effect of preambular paragraphs or whereas clauses on
statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It
is merely an introduction to show its intent or purposes. It
cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation much
less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the
same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of
pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to
the pardon extended to former President
Estrada. 42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s
silence on former President Estrada’s decision to run for
President in the May 2010 elections against, among others,
the candidate of the political party of former President
Arroyo, after the latter’s receipt and acceptance of the
pardon speaks volume of her intention to restore him to his
rights to suffrage and to hold public office.
Where the scope and import of the executive clemency
extended by the President is in issue, the Court must turn to
the only evidence available to it, and that is the pardon itself.
From a detailed review of the four corners of said document,
nothing therein gives an iota of intimation that the third
Page 33 of 53
Whereas Clause is actually a limitation, proviso, stipulation
or condition on the grant of the pardon, such that the breach
of the mentioned commitment not to seek public office will
result in a revocation or cancellation of said pardon. To the
Court, what it is simply is a statement of fact or the prevailing
situation at the time the executive clemency was granted. It
was not used as a condition to the efficacy or to delimit the
scope of the pardon.
Even if the Court were to subscribe to the view that the third
Whereas Clause was one of the reasons to grant the pardon,
the pardon itself does not provide for the attendant
consequence of the breach thereof. This Court will be hard
put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which
civil or political rights were restored if the Court were to take
the road suggested by Risos-Vidal that the statement "[h]e
is hereby restored to his civil and political rights" excludes
the restoration of former President Estrada’s rights to
suffrage and to hold public office. The aforequoted text ofthe
executive clemency granted does not provide the Court with
any guide asto how and where to draw the line between the
included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue
for resolution is not whether the pardon is contingent on the
condition that former President Estrada will not seek another
elective public office, but it actually concerns the coverage
of the pardon – whether the pardon granted to former
President Estrada was so expansive as to have restored all
his political rights, inclusive of the rights of suffrage and to
hold public office. Justice Leonen is of the view that the
pardon in question is not absolute nor plenary in scope
despite the statement that former President Estrada is
"hereby restored to his civil and political rights," that is, the
foregoing statement restored to former President Estrada all
his civil and political rights except the rights denied to him
by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of
suffrage and to hold public office. He adds that had the
President chosen to be so expansive as to include the rights
of suffrage and to hold public office, she should have been
clearer on her intentions.
However, the statement "[h]e is hereby restored to his civil
and political rights," to the mind of the Court, iscrystal clear
– the pardon granted to former President Estrada was
absolute, meaning, it was not only unconditional, it was
unrestricted in scope, complete and plenary in character, as
the term "political rights" adverted to has a settled meaning
in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the
omission of the qualifying word "full" can be construed as
excluding the restoration of the rights of suffrage and to hold
public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term
"political rights" used alone without any qualification. How to
ascribe to the latter term the meaning that it is "partial" and
not "full" defies one’s understanding. More so, it will be

extremely difficult to identify which of the political rights are
restored by the pardon, when the text of the latter is silent
on this matter. Exceptions to the grant of pardon cannot be
presumed from the absence of the qualifying word "full"
when the pardon restored the "political rights" of former
President Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say that
the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and concrete
factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverage is concerned, the text of
the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal Code.
The COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-
Vidal, the COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorari
against actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patent
and substantial denial of due process, because the
COMELEC is presumed to be most competent in matters
falling within its domain. 43
As settled in jurisprudence, grave abuse of discretion is the
arbitrary exercise of power due to passion, prejudice or
personal hostility; or the whimsical, arbitrary, or capricious
exercise of power that amounts to an evasion or refusal to
perform a positive duty enjoined by law or to act at all in
contemplation of law. For an act to be condemned as having
been done with grave abuse of discretion, such an abuse
must be patent and gross. 44
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the
assailed COMELEC Resolutions were issued in a
"whimsical, arbitrary or capricious exercise of power that
amounts to an evasion or refusal to perform a positive duty
enjoined by law" or were so "patent and gross" as to
constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds
it unnecessary to separately discuss Lim's petition-in-
intervention, which substantially presented the same
arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-in
intervention are DISMISSED. The Resolution dated April 1,
2013 of the Commission on Elections, Second Division, and
the Resolution dated April 23, 2013 of the Commission on
Elections, En bane, both in SPA No. 13-211 (DC), are
AFFIRMED.
Page 34 of 53
SO ORDERED.
--------------------------------XXX--------------------------------
2. Probation Law (PD 968 as amended by RA 10707)
PRESIDENTIAL DECREE No. 968 July 24, 1976
ESTABLISHING A PROBATION SYSTEM,
APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES
WHEREAS, one of the major goals of the government is to
establish a more enlightened and humane correctional
systems that will promote the reformation of offenders and
thereby reduce the incidence of recidivism;
WHEREAS, the confinement of all offenders prisons and
other institutions with rehabilitation programs constitutes an
onerous drain on the financial resources of the country; and
WHEREAS, there is a need to provide a less costly
alternative to the imprisonment of offenders who are likely to
respond to individualized, community-based treatment
programs;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me by
the Constitution, do hereby order and decree the following:
Section 1. Title and Scope of the Decree. This Decree shall
be known as the Probation Law of 1976. It shall apply to all
offenders except those entitled to the benefits under the
provisions of Presidential Decree numbered Six Hundred
and three and similar laws.
Section 2. Purpose. This Decree shall be interpreted so as
to:
(a) promote the correction and rehabilitation of an offender
by providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a
prison sentence; and
(c) prevent the commission of offenses.
Section 3. Meaning of Terms. As used in this Decree, the
following shall, unless the context otherwise requires, be
construed thus:
(a) "Probation" is a disposition under which a defendant,
after conviction and sentence, is released subject to
conditions imposed by the court and to the supervision of a
probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates for the
court a referral for probation or supervises a probationer or
both.

Section 4. Grant of Probation. Subject to the provisions of
this Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and
place the defendant on probation for such period and upon
such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the
sentence of conviction. The filing of the application shall be
deemed a waver of the right to appeal, or the automatic
withdrawal of a pending appeal.
An order granting or denying probation shall not be
appealable.
Section 5. Post-sentence Investigation. No person shall be
placed on probation except upon prior investigation by the
probation officer and a determination by the court that the
ends of justice and the best interest of the public as well as
that of the defendant will be served thereby.
Section 6. Form of Investigation Report. The investigation
report to be submitted by the probation officer under Section
5 hereof shall be in the form prescribed by the Probation
Administrator and approved by the Secretary of Justice.
Section 7. Period for Submission of Investigation
Report. The probation officer shall submit to the court the
investigation report on a defendant not later than sixty days
from receipt of the order of said court to conduct the
investigation. The court shall resolve the petition for
probation not later than five days after receipt of said report.
Pending submission of the investigation report and the
resolution of the petition, the defendant may be allowed on
temporary liberty under his bail filed in the criminal case;
Provided, That, in case where no bail was filed or that the
defendant is incapable of filing one, the court may allow the
release of the defendant on recognize the custody of a
responsible member of the community who shall guarantee
his appearance whenever required by the court.
Section 8. Criteria for Placing an Offender on Probation. In
determining whether an offender may be placed on
probation, the court shall consider all information relative, to
the character, antecedents, environment, mental and
physical condition of the offender, and available institutional
and community resources. Probation shall be denied if the
court finds that:
(a) the offender is in need of correctional treatment that can
be provided most effectively by his commitment to an
institution; or
(b) there is undue risk that during the period of probation the
offender will commit another crime; or
(c) probation will depreciate the seriousness of the offense
committed.
Page 35 of 53
Section 9. Disqualified Offenders. The benefits of this
Decree shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of any offense against the security of the State;
(c) who have previously been convicted by final judgment of
an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two
Hundred Pesos;
(d) who have been once on probation under the provisions
of this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.
Section 10. Conditions of Probation. Every probation order
issued by the court shall contain conditions requiring that the
probationer shall:
(a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified
in the order within seventy-two hours from receipt of said
order;
(b) report to the probation officer at least once a month at
such time and place as specified by said officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;
(c) devote himself to a specific employment and not to
change said employment without the prior written approval
of the probation officer;
(d) undergo medical, psychological or psychiatric
examination and treatment and enter and remain in a
specified institution, when required for that purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established for instruction,
recreation or residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to excess;
(i) permit to probation officer or an authorized social worker
to visit his home and place or work;
(j) reside at premises approved by it and not to change his
residence without its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of
the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.

Section 11. Effectivity of Probation Order. A probation order
shall take effect upon its issuance, at which time the court
shall inform the offender of the consequences thereof and
explain that upon his failure to comply with any of the
conditions prescribed in the said order or his commission of
another offense, he shall serve the penalty imposed for the
offense under which he was placed on probation.
Section 12. Modification of Condition of Probation. During
the period of probation, the court may, upon application of
either the probationer or the probation officer, revise or
modify the conditions or period of probation. The court shall
notify either the probationer or the probation officer of the
filing such an application so as to give both parties an
opportunity to be heard thereon.
The court shall inform in writing the probation officer and the
probationer of any change in the period or conditions of
probation.
Section 13. Control and Supervision of Probationer. The
probationer and his probation program shall be under the
control of the court who placed him on probation subject to
actual supervision and visitation by a probation officer.
Whenever a probationer is permitted to reside in a place
under the jurisdiction of another court, control over him shall
be transferred to the Executive Judge of the Court of First
Instance of that place, and in such a case, a copy of the
probation order, the investigation report and other pertinent
records shall be furnished said Executive Judge. Thereafter,
the Executive Judge to whom jurisdiction over the
probationer is transferred shall have the power with respect
to him that was previously possessed by the court which
granted the probation.
Section 14. Period of Probation.
(a) The period of probation of a defendant sentenced to a
term of imprisonment of not more than one year shall not
exceed two years, and in all other cases, said period shall
not exceed six years.
(b) When the sentence imposes a fine only and the offender
is made to serve subsidiary imprisonment in case of
insolvency, the period of probation shall not be less than nor
to be more than twice the total number of days of subsidiary
imprisonment as computed at the rate established, in Article
thirty-nine of the Revised Penal Code, as amended.
Section 15. Arrest of Probationer; Subsequent
Disposition. At any time during probation, the court may
issue a warrant for the arrest of a probationer for violation of
any of the conditions of probation. The probationer, once
arrested and detained, shall immediately be brought before
the court for a hearing, which may be informal and summary,
of the violation charged. The defendant may be admitted to
bail pending such hearing. In such a case, the provisions
regarding release on bail of persons charged with a crime
shall be applicable to probationers arrested under this
provision. If the violation is established, the court may
revoke or continue his probation and modify the conditions
Page 36 of 53
thereof. If revoked, the court shall order the probationer to
serve the sentence originally imposed. An order revoking the
grant of probation or modifying the terms and conditions
thereof shall not be appealable.
Section 16. Termination of Probation. After the period of
probation and upon consideration of the report and
recommendation of the probation officer, the court may order
the final discharge of the probationer upon finding that he
has fulfilled the terms and conditions of his probation and
thereupon the case is deemed terminated.
The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspend as a result of his
conviction and to fully discharge his liability for any fine
imposed as to the offense for which probation was granted.
The probationer and the probation officer shall each be
furnished with a copy of such order.
Section 17. Confidentiality of Records. The investigation
report and the supervision history of a probationer obtained
under this Decree shall be privileged and shall not be
disclosed directly or indirectly to anyone other than the
Probation Administration or the court concerned, except that
the court, in its discretion, may permit the probationer of his
attorney to inspect the aforementioned documents or parts
thereof whenever the best interest of the probationer make
such disclosure desirable or helpful: Provided, Further, That,
any government office or agency engaged in the correction
or rehabilitation of offenders may, if necessary, obtain
copies of said documents for its official use from the proper
court or the Administration.
Section 18. The Probation Administration. There is hereby
created under the Department of Justice an agency to be
known as the Probation Administration herein referred to as
the Administration, which shall exercise general supervision
over all probationers.
The Administration shall have such staff, operating units and
personnel as may be necessary for the proper execution of
its functions.
Section 19. Probation Administration. The Administration
shall be headed by the Probation Administrator, hereinafter
referred to as the Administrator, who shall be appointed by
the President of the Philippines. He shall hold office during
good behavior and shall not be removed except for cause.
The Administrator shall receive an annual salary of at least
forty thousand pesos. His powers and duties shall be to:
(a) act as the executive officer of the Administration;
(b) exercise supervision and control over all probation
officers;
(c) make annual reports to the Secretary of Justice, in such
form as the latter may prescribe, concerning the operation,
administration and improvement of the probation system;

(d) promulgate, subject to the approval of the Secretary of
Justice, the necessary rules relative to the methods and
procedures of the probation process;
(e) recommend to the Secretary of Justice the appointment
of the subordinate personnel of his Administration and other
offices established in this Decree; and
(f) generally, perform such duties and exercise such powers
as may be necessary or incidental to achieve the objectives
of this Decree.
Section 20. Assistant Probation Administrator. There shall
be an Assistant Probation Administrator who shall assist the
Administrator perform such duties as may be assigned to
him by the latter and as may be provided by law. In the
absence of the Administrator, he shall act as head of the
Administration.
He shall be appointed by the President of the Philippines and
shall receive an annual salary of at least thirty-six thousand
pesos.
Section 21. Qualifications of the Administrator and
Assistant Probation Administrator. To be eligible for
Appointment as Administrator or Assistant Probation
Administrator, a person must be at least thirty-five years of
age, holder of a master's degree or its equivalent in either
criminology, social work, corrections, penology, psychology,
sociology, public administration, law, police science, police
administration, or related fields, and should have at least five
years of supervisory experience, or be a member of the
Philippine Bar with at least seven years of supervisory
experience.
Section 22. Regional Office; Regional Probation
Officer. The Administration shall have regional offices
organized in accordance with the field service area patterns
established under the Integrated Reorganization Plan.
Such regional offices shall be headed by a Regional
Probation Officer who shall be appointed by President of the
Philippines in accordance with the Integrated
Reorganization Plan and upon the recommendation of the
Secretary of Justice.
The Regional Probation Officer shall exercise supervision
and control over all probation officer within his jurisdiction
and such duties as may assigned to him by the
Administrator. He shall have an annual salary of at least
twenty-four thousand pesos.
He shall, whenever necessary, be assisted by an Assistant
Regional Probation Officer who shall also be appointed by
the President of the Philippines, upon recommendation of
the Secretary of Justice, with an annual salary of at least
twenty thousand pesos.
Section 23. Provincial and City Probation Officers. There
shall be at least one probation officer in each province and
city who shall be appointed by the Secretary of Justice upon
Page 37 of 53
recommendation of the Administrator and in accordance with
civil service law and rules.
The Provincial or City Probation Officer shall receive an
annual salary of at least eighteen thousand four hundred
pesos.
His duties shall be to:
(a) investigate all persons referred to him for investigation
by the proper court or the Administrator;
(b) instruct all probationers under his supervision of that of
the probation aide on the terms and conditions of their
probations;
(c) keep himself informed of the conduct and condition of
probationers under his charge and use all suitable methods
to bring about an improvement in their conduct and
conditions;
(d) maintain a detailed record of his work and submit such
written reports as may be required by the Administration or
the court having jurisdiction over the probationer under his
supervision;
(e) prepare a list of qualified residents of the province or city
where he is assigned who are willing to act as probation
aides;
(f) supervise the training of probation aides and oversee the
latter's supervision of probationers;
(g) exercise supervision and control over all field assistants,
probation aides and other personnel; and
(h) perform such duties as may be assigned by the court or
the Administration.
Section 24. Miscellaneous Powers of Provincial and City
Probation Officers. Provincial or City Probation Officers shall
have the authority within their territorial jurisdiction to
administer oaths and acknowledgments and to take
depositions in connection with their duties and functions
under this Decree. They shall also have, with respect to
probationers under their care, the powers of police officer.
Section 25. Qualifications of Regional, Assistant Regional,
Provincial, and City Probation Officers. No person shall be
appointed Regional or Assistant Regional or Provincial or
City Probation Officer unless he possesses at least a
bachelor's degree with a major in social work, sociology,
psychology, criminology, penology, corrections, police
science, administration, or related fields and has at least
three years of experience in work requiring any of the
abovementioned disciplines, or is a member of the Philippine
Bar with at least three years of supervisory experience.
Whenever practicable, the Provincial or City Probation
Officer shall be appointed from among qualified residents of
the province or city where he will be assigned to work.
Section 26. Organization. Within twelve months from the
approval of this Decree, the Secretary of Justice shall

organize the administrative structure of the Administration
and the other agencies created herein. During said period,
he shall also determine the staffing patterns of the regional,
provincial and city probation offices with the end in view of
achieving maximum efficiency and economy in the
operations of the probation system.
Section 27. Field Assistants, Subordinate Personnel,
Provincial or City Probation Officers shall be assisted by
such field assistants and subordinate personnel as may be
necessary to enable them to carry out their duties effectively.
Section 28. Probation Aides. To assist the Provincial or City
Probation Officers in the supervision of probationers, the
Probation Administrator may appoint citizens of good repute
and probity to act as probation aides.
Probation Aides shall not receive any regular compensation
for services except for reasonable travel allowance. They
shall hold office for such period as may be determined by
the Probation Administrator. Their qualifications and
maximum case loads shall be provided in the rules
promulgated pursuant to this Decree.
Section 29. Violation of Confidential Nature of Probation
Records. The penalty of imprisonment ranging from six
months and one day to six years and a fine ranging from
hundred to six thousand pesos shall be imposed upon any
person who violates Section 17 hereof.
Section 30. Appropriations. There is hereby authorized the
appropriation of the sum of Six Million Five Hundred
Thousand Pesos or so much as may be necessary, out of
any funds in the National Treasury not otherwise
appropriated, to carry out the purposes of this Decree.
Thereafter, the amount of at least Ten Million Five Hundred
Thousand Pesos or so much as may be necessary shall be
included in the annual appropriations of the national
government.
Section 31. Repealing Clause. All provisions of existing
laws, orders and regulations contrary to or inconsistent with
this Decree are hereby repealed or modified accordingly.
Section 32. Separability of Provisions. If any part, section or
provision of this Decree shall be held invalid or
unconstitutional, no other parts, sections or provisions
hereof shall be affected thereby.
Section 33. Effectivity. This Decree shall take effect upon
its approval: Provided, However, That, the application of its
substantive provisions concerning the grant of probation
shall only take effect twelve months after the certification by
the Secretary of Justice to the Chief Justice of the Supreme
Court that the administrative structure of the Probation
Administration and of the other agencies has been
organized.
DONE in the City of Manila, this 24th day of July in the year
of Our Lord, nineteen hundred and seventy-six.
Page 38 of 53
--------------------------------XXX------------------------------------
REPUBLIC ACT No. 10707
AN ACT AMENDING PRESIDENTIAL DECREE NO. 968,
OTHERWISE KNOWN AS THE “PROBATION LAW OF
1976”, AS AMENDED
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled:
SECTION 1. Section 4 of Presidential Decree No. 968, as
amended, is hereby further amended to read as follows:
“SEC. 4. Grant of Probation. — Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant for a probationable penalty and
upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence
and place the defendant on probation for such period and
upon such terms and conditions as it may deem best. No
application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment
of conviction: Provided, That when a judgment of conviction
imposing a non-probationable penalty is appealed or
reviewed, and such judgment is modified through the
imposition of a probationable penalty, the defendant shall be
allowed to apply for probation based on the modified
decision before such decision becomes final. The
application for probation based on the modified decision
shall be filed in the trial court where the judgment of
conviction imposing a non-probationable penalty was
rendered, or in the trial court where such case has since
been re-raffled. In a case involving several defendants
where some have taken further appeal, the other defendants
may apply for probation by submitting a written application
and attaching thereto a certified true copy of the judgment of
conviction.
“The trial court shall, upon receipt of the application filed,
suspend the execution of the sentence imposed in the
judgment.
“This notwithstanding, the accused shall lose the benefit of
probation should he seek a review of the modified decision
which already imposes a probationable penalty.
“Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. The filing of the
application shall be deemed a waiver of the right to
appeal.1âwphi1
“An order granting or denying probation shall not be
appealable.”
SECTION 2. Section 9 of the same Decree, as amended, is
hereby further amended to read as follows:
“SEC. 9. Disqualified Offenders. — The benefits of this
Decree shall not be extended to those:
“a. sentenced to serve a maximum term of imprisonment of
more than six (6) years;

“b. convicted of any crime against the national security;
“c. who have previously been convicted by final judgment of
an offense punished by imprisonment of more than six (6)
months and one (1) day and/or a fine of more than one
thousand pesos (P1,000.00);
“d. who have been once on probation under the provisions
of this Decree; and
“e. who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Section 33 hereof.”
SECTION 3. Section 16 of the same Decree, as amended,
is hereby further amended to read as follows:
“SEC. 16. Termination of Probation. — After the period of
probation and upon consideration of the report and
recommendation of the probation officer, the court may order
the final discharge of the probationer upon finding that he
has fulfilled the terms and conditions of his probation and
thereupon the case is deemed terminated.
“The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of
his conviction and to totally extinguish his criminal liability as
to the offense for which probation was granted.
“The probationer and the probation officer shall each be
furnished with a copy of such order.”
SECTION 4. Section 24 of the same Decree is hereby
amended to read as follows:
“SEC. 24. Miscellaneous Powers of Regional, Provincial and
City Probation Officers. — Regional, Provincial or City
Probation Officers shall have the authority within their
territorial jurisdiction to administer oaths and
acknowledgments and to take depositions in connection with
their duties and functions under this Decree. They shall also
have, with respect to probationers under their care, the
powers of a police officer. They shall be considered as
persons in authority.”
SECTION 5. Section 27 of the same Decree is hereby
amended to read as follows:
“SEC. 27. Field Assistants, Subordinate Personnel. –
Regional, Provincial or City Probation Officers shall be
assisted by such field assistants and subordinate personnel
as may be necessary to enable them to carry out their duties
effectively.”
SECTION 6. Section 28 of the same Decree is hereby
amended to read as follows:
“SEC. 28. Volunteer Probation Assistants (VPAs). — To
assist the Chief Probation and Parole Officers in the
supervised treatment program of the probationers, the
Probation Administrator may appoint citizens of good repute
and probity, who have the willingness, aptitude, and
capability to act as VPAs.
Page 39 of 53
“VPAs shall not receive any regular compensation except for
reasonable transportation and meal allowances, as may be
determined by the Probation Administrator, for services
rendered as VPAs.
“They shall hold office for a two (2)-year term which may be
renewed or recalled anytime for a just cause. Their
functions, qualifications, continuance in office and maximum
case loads shall be further prescribed under the
implementing rules and regulations of this Act.
“There shall be a reasonable number of VPAs in every
regional, provincial, and city probation office. In order to
strengthen the functional relationship of VPAs and the
Probation Administrator, the latter shall encourage and
support the former to organize themselves in the national,
regional, provincial, and city levels for effective utilization,
coordination, and sustainability of the volunteer program.”
SECTION 7. Separability Clause. — If any provision of this
Act is declared invalid, the provisions hereof not affected by
such declaration shall remain in full force and effect.
SECTION 8. Repealing Clause. — All laws, executive
orders, or administrative orders, rules and regulations or
parts thereof which are inconsistent with this Act are hereby
amended, repealed or modified accordingly.
SECTION 9. Appropriations Clause. — The amount
necessary to carry out the provisions of this Act shall be
included in the General Appropriations Act of the year
following its enactment into law.
SECTION 10. Implementing Rules and Regulations. —
Within sixty (60) days from the approval of this Act, the
Department of Justice shall promulgate such rules and
regulations as may be necessary to carry out the provisions
of this Act.
SECTION 11. Effectivity. — This Act shall take effect
immediately after its publication in the Official Gazette or in
two (2) newspapers of general circulation.
--------------------------------XXX------------------------------

CASES:
EN BANC
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense,
to prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused
who appeals may still apply for probation on remand of the
case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the
accused Arnel Colinares (Arnel) with frustrated homicide
before the Regional Trial Court (RTC) of San Jose,
Camarines Sur, in Criminal Case T-2213. 1
Complainant Rufino P. Buena (Rufino) testified that at
around 7:00 in the evening on June 25, 2000, he and Jesus
Paulite (Jesus) went out to buy cigarettes at a nearby store.
On their way, Jesus took a leak by the roadside with Rufino
waiting nearby. From nowhere, Arnel sneaked behind and
struck Rufino twice on the head with a huge stone, about 15
½ inches in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking
home when he saw Rufino lying by the roadside. Ananias
tried to help but someone struck him with something hard on
the right temple, knocking him out. He later learned that
Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole
incident since he happened to be smoking outside his house.
He sought the help of a barangay tanod and they brought
Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal
Certificate2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The doctor
testified that these injuries were serious and potentially fatal
but Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite
(Diomedes). Arnel claimed self-defense. He testified that he
was on his way home that evening when he met Rufino,
Jesus, and Ananias who were all quite drunk. Arnel asked
Rufino where he supposed the Mayor of Tigaon was but,
rather than reply, Rufino pushed him, causing his fall. Jesus
and Ananias then boxed Arnel several times on the back.
Rufino tried to stab Arnel but missed. The latter picked up a
stone and, defending himself, struck Rufino on the head with
it. When Ananias saw this, he charged towards Arnel and
tried to stab him with a gaff. Arnel was able to avoid the
Page 40 of 53
attack and hit Ananias with the same stone. Arnel then fled
and hid in his sister’s house. On September 4, 2000, he
voluntarily surrendered at the Tigaon Municipal Police
Station.
Diomedes testified that he, Rufino, Jesus, and Ananias
attended a pre-wedding party on the night of the incident.
His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with
Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel
guilty beyond reasonable doubt of frustrated homicide and
sentenced him to suffer imprisonment from two years and
four months of prision correccional, as minimum, to six years
and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was
only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-
defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction
of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the
absence of evidence to support it. 3 Not satisfied, Arnel
comes to this Court on petition for review.
In the course of its deliberation on the case, the Court
required Arnel and the Solicitor General to submit their
respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide with
its imposable penalty of imprisonment of four months of
arresto mayor, as minimum, to two years and four months of
prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should
be entitled to apply for probation in case the Court metes out
a new penalty on him that makes his offense probationable.
The language and spirit of the probation law warrants such
a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation
can be entertained once the accused has perfected his
appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck
Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or not
Arnel is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a
lower offense and a reduced probationable penalty, whether
or not he may still apply for probation on remand of the case
to the trial court.
The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked
him first and that he merely acted in self-defense when he
hit Rufino back with a stone.
When the accused invokes self-defense, he bears the
burden of showing that he was legally justified in killing the
victim or inflicting injury to him. The accused must establish
the elements of self-defense by clear and convincing
evidence. When successful, the otherwise felonious deed
would be excused, mainly predicated on the lack of criminal
intent of the accused. 4
In homicide, whether consummated, frustrated, or
attempted, self-defense requires (1) that the person whom
the offender killed or injured committed unlawful aggression;
(2) that the offender employed means that is reasonably
necessary to prevent or repel the unlawful aggression; and
(3) that the person defending himself did not act with
sufficient provocation. 5
If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the
other two requisites of self-defense would have no basis for
being appreciated. Unlawful aggression contemplates an
actual, sudden, and unexpected attack or an imminent
danger of such attack. A mere threatening or intimidating
attitude is not enough. The victim must attack the accused
with actual physical force or with a weapon. 6
Here, the lower courts found that Arnel failed to prove the
element of unlawful aggression. He alone testified that Jesus
and Ananias rained fist blows on him and that Rufino and
Ananias tried to stab him. No one corroborated Arnel’s
testimony that it was Rufino who started it. Arnel’s only other
witness, Diomedes, merely testified that he saw those
involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove
his point that he suffered injuries in the hands of Rufino and
his companions. 7
In contrast, the three witnesses—Jesus, Paciano, and
Ananias—testified that Arnel was the aggressor. Although
their versions were mottled with inconsistencies, these do
not detract from their core story. The witnesses were one in
what Arnel did and when and how he did it. Compared to
Arnel’s testimony, the prosecution’s version is more
believable and consistent with reality, hence deserving
credence. 8
Two. But given that Arnel, the accused, was indeed the
aggressor, would he be liable for frustrated homicide when
the wounds he inflicted on Rufino, his victim, were not fatal
and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the
accused’s intent to take his victim’s life. The prosecution has
to prove this clearly and convincingly to exclude every
possible doubt regarding homicidal intent. 9And the intent to
kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of
wounds he inflicted on his victim. 10
Page 41 of 53
Here, Arnel struck Rufino on the head with a huge stone.
The blow was so forceful that it knocked Rufino out.
Considering the great size of his weapon, the impact it
produced, and the location of the wounds that Arnel inflicted
on his victim, the Court is convinced that he intended to kill
him.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v.
People, 11 we ruled that when the accused intended to kill his
victim, as shown by his use of a deadly weapon and the
wounds he inflicted, but the victim did not die because of
timely medical assistance, the crime is frustrated murder or
frustrated homicide. If the victim’s wounds are not fatal, the
crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the
nature, extent, depth, and severity of the victim’s wounds.
While Dr. Belleza testified that "head injuries are always very
serious," 12 he could not categorically say that Rufino’s
wounds in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the
wounds actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent
from becoming fatal. But on that case the patient
preferred to go home at that time.
Q: The findings also indicated in the medical certificate
only refers to the length of the wound not the depth of
the wound?
A: When you say lacerated wound, the entire length of
the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin
is broken up the label of the frontal lo[b]e, we always call
it lacerated wound, but in that kind of wound, we did not
measure the depth. 13
Indeed, Rufino had two lacerations on his forehead but there
was no indication that his skull incurred fracture or that he
bled internally as a result of the pounding of his head. The
wounds were not so deep, they merely required suturing,
and were estimated to heal in seven or eight days. Dr.
Belleza further testified:
Q: So, in the medical certificate the wounds will not
require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we
give antibiotics and antit[e]tanus – the problem the
contusion that occurred in the brain.

xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and
suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but
some of them would rather go home and then come
back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence
on record to support the prosecution’s claim that Rufino
would have died without timely medical intervention. Thus,
the Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary
surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply
for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to imprisonment
of four months of arresto mayor, as minimum, to two years
and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to
apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is
a mere privilege granted by the state only to qualified
convicted offenders. Section 4 of the probation law (PD 968)
provides: "That no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." 15 Since Arnel
appealed his conviction for frustrated homicide, he should
be deemed permanently disqualified from applying for
probation.
But, firstly, while it is true that probation is a mere privilege,
the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for
that privilege. The Court finds that his maximum jail term
should only be 2 years and 4 months. If the Court allows him
to apply for probation because of the lowered penalty, it is
still up to the trial judge to decide whether or not to grant him
the privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the accused
who appeals "from the judgment of conviction" is disqualified
from availing himself of the benefits of probation. But, as it
happens, two judgments of conviction have been meted out
Page 42 of 53
to Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard
position, it will apply the probation law on Arnel based on the
trial court’s annulled judgment against him. He will not be
entitled to probation because of the severe penalty that such
judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial court’s
judgment—even if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial court’s
erroneous judgment with the forfeiture of his right to apply
for probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw (the horse errs, the carabao gets the whip). Where
is justice there?
The dissenting opinion also expresses apprehension that
allowing Arnel to apply for probation would dilute the ruling
of this Court in Francisco v. Court of Appeals 16 that the
probation law requires that an accused must not have
appealed his conviction before he can avail himself of
probation. But there is a huge difference between Francisco
and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati
found the accused guilty of grave oral defamation and
sentenced him to a prison term of one year and one day to
one year and eight months of prision correccional, a clearly
probationable penalty. Probation was his to ask! Still, he
chose to appeal, seeking an acquittal, hence clearly waiving
his right to apply for probation. When the acquittal did not
come, he wanted probation. The Court would not of course
let him. It served him right that he wanted to save his cake
and eat it too. He certainly could not have both appeal and
probation.
The Probation Law, said the Court in Francisco, requires that
an accused must not have appealed his conviction before he
can avail himself of probation. This requirement "outlaws the
element of speculation on the part of the accused—to wager
on the result of his appeal—that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand,
and the service of his sentence inevitable, he now applies
for probation as an ‘escape hatch’ thus rendering nugatory
the appellate court’s affirmance of his conviction." 17
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in
a position to say, "By taking this appeal, I choose not to
apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Court’s
greatly diminished penalty will not dilute the sound ruling in
Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed that
the evidence at best warranted his conviction only for
attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from
the beginning to bring down the penalty to the level where
the law would allow him to apply for probation.
In a real sense, the Court’s finding that Arnel was guilty, not
of frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a
probationable penalty. Had the RTC done him right from the
start, it would have found him guilty of the correct offense
and imposed on him the right penalty of two years and four
months maximum.lavvphil This would have afforded Arnel
the right to apply for probation.
The Probation Law never intended to deny an accused his
right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the
accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. 18 As
Justice Vicente V. Mendoza said in his dissent in Francisco,
the Probation Law must not be regarded as a mere privilege
to be given to the accused only where it clearly appears he
comes within its letter; to do so would be to disregard the
teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal
law but to achieve its beneficent purpose. 19
One of those who dissent from this decision points out that
allowing Arnel to apply for probation after he appealed from
the trial court’s judgment of conviction would not be
consistent with the provision of Section 2 that the probation
law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel
who appeals from a judgment convicting him, it is claimed,
shows no penitence.
This may be true if the trial court meted out to Arnel a correct
judgment of conviction. Here, however, it convicted Arnel of
the wrong crime, frustrated homicide, that carried a penalty
in excess of 6 years. How can the Court expect him to feel
penitent over a crime, which as the Court now finds, he did
not commit? He only committed attempted homicide with its
maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for
probation under the reduced penalty, it would be sending
him straight behind bars. It would be robbing him of the
chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what
was right and imposed on Arnel the correct penalty of two
years and four months maximum, he would have had the
right to apply for probation. No one could say with certainty
that he would have availed himself of the right had the RTC
done right by him. The idea may not even have crossed his
mind precisely since the penalty he got was not
probationable.
Page 43 of 53
The question in this case is ultimately one of fairness. Is it
fair to deny Arnel the right to apply for probation when the
new penalty that the Court imposes on him is, unlike the one
erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition,
MODIFIES the Decision dated July 31, 2007 of the Court of
Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel
Colinares GUILTY beyond reasonable doubt of attempted
homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to
two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of
₱20,000.00 as moral damages, without prejudice to
petitioner applying for probation within 15 days from notice
that the record of the case has been remanded for execution
to the Regional Trial Court of San Jose, Camarines Sur, in
Criminal Case T-2213.
SO ORDERED.
---------------------------------XXX--------------------------------------
FIRST DIVISION
G.R. No. 152044 July 3, 2003
DOMINGO LAGROSA and OSIAS BAGUIN, petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and THE
HONORABLE COURT OF APPEALS, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review of the decision of the Court of
Appeals in CA-G.R. No. 67308, 1 which affirmed the
Resolution of the Regional Trial Court of Tagbilaran City,
Branch 2, denying petitioners’ Application for Probation, and
its Order denying petitioners’ Motion for Reconsideration. 2
The undisputed facts are as follows.
On October 29, 1996, the Regional Trial Court of Tagbilaran
City, Branch 2, rendered a decision in Criminal Case No.
8243,3 finding petitioners Domingo Lagrosa and Osias
Baguin guilty of violation of Section 68 of P.D. 705, as
amended (The Revised Forestry Code), for having in their
possession forest products without the requisite permits.
The trial court sentenced them to suffer the indeterminate
penalty of imprisonment from two (2) years, four (4) months
and one (1) day of prision correccional, as minimum, to eight
(8) years of prision mayor, as maximum. Petitioners’ Motion
for Reconsideration of the decision 4 was denied by the trial
court on November 21, 1996. 5
Petitioners appealed their conviction to the Court of Appeals,
where it was docketed as CA-G.R. CR No. 20632. 6 On
March 14, 2000, the appellate court affirmed the conviction
of the petitioners, with the modification as to the penalty
imposed, which was reduced to an indeterminate penalty
ranging from six (6) months and one (1) day of prision
correccional, as minimum, to one (1) year, eight (8) months
and twenty one (21) days of prision correccional, as

maximum. 7 The decision became final and executory on
April 12, 2000.
On August 29, 2001, petitioners filed an Application for
Probation with the trial court, 8 which, as mentioned at the
outset, was denied. Petitioners’ motion for reconsideration
was likewise denied by the trial court. Hence, petitioners
filed a petition for certiorari with the Court of Appeals, which
was docketed as CA-G.R. SP No. 67308. 9 On January 11,
2002, the Court of Appeals rendered the assailed decision
affirming the questioned resolutions of the trial court.
Hence this petition, raising the following arguments:
1) That Section 4 of Presidential Decree No. 968, as
amended by PD No. 1990, is very absurd and illogical
considering that petitioners were not given the opportunity
to apply for probation when they were convicted by the
Regional Trial Court of Bohol, Branch 2, because the penalty
imposed by said court is more than six (6) years and
therefore non-probationable.
That the first opportunity for herein petitioners to apply for
probation was when the Court of Appeals modified the
sentence imposed by the Regional Trial Court of Bohol,
Branch 2, from two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to eight (8) years
of prision mayor, as maximum, to six (6) months and one (1)
day to one (1) year, eight (8) months and twenty one (21)
days as maximum which is clearly probationable.
2) That the ruling of this Honorable Supreme Court in the
case of Pablo Francisco versus Court of Appeals, et al., G.R.
No. 108747, is not applicable to the instant case because in
the said Francisco case the accused therein can apply for
probation because the penalty imposed by the lower court
was already probationable but the accused instead appealed
the decision but in the case of herein petitioners they cannot
apply for probation when they were convicted because the
penalty imposed by the lower court was more than six (6)
years and therefore non-probationable.
3) That the decision of the Court of Appeals herein sought
to be reviewed is clearly contrary to the purpose of the
Probation Law. 10
The law that is at the heart of this controversy is Presidential
Decree No. 968, also known as the Probation Law, as
amended by P.D. 1990, the pertinent provision of which
reads:
SEC. 4. Grant of Probation. – Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment
of conviction.(underscoring ours)
Page 44 of 53
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable.
Under Section 9 (a) of the Probation Law, offenders who are
sentenced to serve a maximum term of imprisonment of
more than six years are disqualified from seeking probation.
It should be noted that before P.D. 968 was amended by
P.D. 1990, the accused was allowed to apply for probation
even after he had already filed an appeal, as long as he had
not yet begun to serve his sentence. 11
Petitioners contend that they should be allowed to apply for
probation even if they had already appealed the decision of
the trial court. They argue that their case should be
considered an exception to the general rule which excludes
an accused who has appealed his conviction from the
benefits of probation. In the case at bar, the trial court
sentenced petitioners to a maximum term of eight years,
which was beyond the coverage of the Probation Law. They
only became eligible for probation after the Court of Appeals
modified the judgment of the trial court and reduced the
maximum term of the penalty imposed on them to one year,
eight months and twenty-one days. 12 They submit that the
ruling in the case of Francisco v. CA 13 is not applicable
because in that case, the accused appealed their conviction
notwithstanding the fact that the maximum term of the prison
sentence imposed on them by the trial court was less than
six years. 14
In its Comment, the Office of the Solicitor General reiterates
the express provision of P.D. 968 prohibiting the grant of
probation to those who have appealed their convictions. 15 It
argues that, even if the petitioners have appealed for the
purpose of reducing an incorrect penalty, this fact does not
serve to remove them from the prohibition in Section 4 of
P.D. 968 for the law makes no such distinction. 16
There is no question that petitioners appealed from the
decision of the trial court. This fact alone merits the denial
of petitioners’ Application for Probation. Having appealed
from the judgment of the trial court and having applied for
probation only after the Court of Appeals had affirmed their
conviction, petitioners were clearly precluded from the
benefits of probation. 17
However, petitioners now ask us not to apply the letter of the
law, claiming that their situation should be considered an
exception to the rule. Their petition is without merit.
Petitioners repeatedly assert that their application for
probation was made at the "first opportunity," undoubtedly
invoking the fourth "whereas" clause of P.D. 1990, which
reads:
WHEREAS, probation was not intended as an escape hatch
and should not be used to obstruct and delay the

administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and
rehabilitated; x x x.
To bolster this assertion, petitioners claim that what
prompted them to appeal the decision of the trial court was
the erroneous penalty imposed by the trial court. 18
Petitioners are not being very candid. In their appellant’s
brief filed in CA-G.R. CR No. 20632, they raised the
following assignment of errors:
I assailing the February 9, 1998 1 and February 25,
THAT THE LOWER COURT ERRED IN FINDING BOTH
ACCUSED GUILTY OF THE OFFENSE CHARGED
BECAUSE THE EVIDENCE AGAINST THEM LACKS
MORAL CERTAINTY.
II.
IF EVER ACCUSED ARE GUILTY, THE LOWER COURT
ERRED IN IMPOSING THE PROPER PENALTY AS
PROVIDED BY LAW.
The fact that petitioners put the merits of their conviction in
issue on appeal belies their claim that their appeal was
prompted by what was admittedly an incorrect penalty.
Certainly, the protestations of petitioners connote a
profession of guiltlessness, if not complete innocence, and
do not simply assail the propriety of the penalties imposed.
For sure, petitioners never manifested that they were
appealing only for the purpose of correcting a wrong penalty
– to reduce it to within probationable range. Hence, upon
interposing an appeal, more so after asserting their
innocence therein, petitioners should be precluded from
seeking probation. By perfecting their appeal, petitioners
ipso facto relinquished the alternative remedy of availing of
the Probation Law, the purpose of which is simply to prevent
speculation or opportunism on the part of an accused who,
although already eligible, does not at once apply for
probation, but did so only after failing in his appeal. 19
Although it has been suggested that an appeal should not
bar the accused from applying for probation if the appeal is
solely to reduce the penalty to within the probationable limit
may be equitable, 20 we are not yet prepared to accept this
proposition, specially given the factual circumstances of this
case. Had the petitioners’ appeal from the decision of the
trial court raised the impropriety of the penalty imposed upon
them as the sole issue, perhaps this Court would have been
more sympathetic to their plight. Unfortunately, their
misrepresentation has led to their own undoing.
WHEREFORE, in view of the foregoing, the petition is
DENIED. The Decision of the Court of Appeals dated
January 11, 2002 in CA-G.R. No. 67308, which affirmed the
Resolution of the Regional Trial Court of Tagbilaran City,
Branch 2, denying petitioners’ Application for Probation, and
its Order denying petitioners’ Motion for Reconsideration, is
AFFIRMED. Costs against the petitioners.
Page 45 of 53
SO ORDERED.
--------------------------------XXX------------------------------
G.R. No. 138203 July 3, 2002
LILIA J. VICOY, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
This is a petition under Rule 45 on pure question of law
1998 2Orders of the Regional Trial Court of Bohol, Branch 3,
in SP. Civil Case No. 5881, dismissing petitioner’s special
civil action for certiorari.
The present controversy stemmed from a judgment of
conviction promulgated on August 24, 1995 by the Municipal
Trial Court in Cities (MTCC) of Tagbilaran, Branch 2, in
Criminal Case Nos. 5265 and 5307. The dispositive portion
thereof reads:
WHEREFORE, Judgment is hereby rendered as follows:
1. In Criminal Case No. 5265, the Court finds and so holds
the herein accused Lilia Vicoy y Jumagdao GUILTY beyond
reasonable doubt for violation of City Ordinance No. 365-B
for peddling fish outside the Agora Public Market, and
accordingly sentences her to suffer the penalty of a fine of
Fifty Pesos (P50.00) with subsidiary imprisonment in case of
insolvency and to pay the costs;
2. In Criminal Case No. 5307, the Court finds and so holds
the herein accused Lilia Vicoy y Jumagdao GUILTY beyond
reasonable doubt of the crime of Resistance and Serious
Disobedience To Agents Of A Person In Authority, and
accordingly sentences her to suffer the penalty of three (3)
months of arresto mayorand to pay a fine of two Hundred
Pesos (P200.00) without subsidiary imprisonment in case of
insolvency and to pay the costs.
SO ORDERED. 3
On the same date, August 24, 1995, petitioner filed an
application for probation. 4 On September 18, 1995,
however, petitioner filed a motion to withdraw her application
for probation and simultaneously filed a notice of appeal. 5
In an Omnibus Order 6 dated September 22, 1995, the MTCC
of Tagbilaran granted petitioner’s withdrawal of her
application for probation but denied her notice of appeal for
having been filed out of time. Petitioner filed a motion for
reconsideration of the denial of her appeal, however, the
same was denied.
Hence, petitioner filed a special civil action for certiorari with
the Regional Trial Court of Bohol, Branch 3, contending that
the MTCC of Tagbilaran gravely abused its discretion in
denying her the right to appeal. Named respondents therein
were the Presiding Judge of MTCC of Tagbilaran, Branch 2,
and the People of the Philippines, represented by the

Philippine National Police of Tagbilaran City. The parties
were ordered by the court to submit their memorandum
within 10 days, after which, the case was submitted for
judgment on the pleadings. 7
Realizing that the People should be represented by the City
Prosecutor’s Office, the court issued an Order dated August
2, 1996, requiring the latter to enter its appearance. In the
same order, petitioner was directed to furnish the City
Prosecutor’s Office with a copy of her memorandum and of
the assailed judgment, thus:
From the reading of the petition that gave rise to this case,
and of the memorandum of the petitioner, it is the considered
opinion of this Court, and so holds, that the City Prosecutor
of Tagbilaran be required to enter his appearance for the
State in the light of the failure of respondent Judge Emma
Enrico-Supremo to submit her reply to comment to the
petition. Besides, the Court noticed that the People of the
Philippines has been impleaded as one of the respondents.
PREMISES CONSIDERED, Atty. Dionisio A. Galido, counsel
for the petitioner, is hereby directed to furnish the Office of
the City Prosecutor of Tagbilaran copies of the questioned
judgment and their memorandum, and for the City
Prosecutor to submit within ten (10) days from receipt
thereof, his memorandum or any pleading on the matter. 8
On February 9, 1998, 9 the Regional Trial Court rendered the
assailed Order dismissing petitioner’s special civil action for
certiorari for failure to comply with the aforequoted August
2, 1996 Order. A motion for reconsideration of the said order
of dismissal was denied on February 25, 1999. 10
Hence, the instant petition. The sole issue raised in this
petition is whether or not the petition for certiorari was validly
dismissed by the Regional Trial Court on the ground of
petitioner’s failure to comply with its Order dated August 2,
1996.
Section 3, Rule 17, of the Rules of Court, provides:
Section 3. Dismissal due to fault of plaintiff. - If, for no
justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or
to prosecute his action for an unreasonable length of time,
or to comply with these Rules or any order of the
court, the complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without prejudice
to the right of the defendant to prosecute his counterclaim in
the same or in a separate action. This dismissal shall have
the effect of an adjudication on the merits, unless otherwise
declared by the court. (Emphasis supplied)
In the case at bar, the trial court categorically directed
petitioner, in its August 2, 1996 Order, to furnish the City
Prosecutor’s Office with a copy of her memorandum and of
the assailed judgment. Petitioner’s counsel did not comply,
prompting the court to dismiss the petition for certiorari on
February 9, 1998. The fact that the City Prosecutor’s Office
has not yet entered its appearance is no justification to
petitioner’s adamant and continued insistence not to comply
Page 46 of 53
with a lawful order of the court. Every court has the power to
enforce and compel obedience to its orders, judgments, and
processes in all proceedings pending before it. 11 The
Regional Trial Court’s dismissal of petitioner’s special civil
action, therefore, was but a valid exercise of said power.
Moreover, even assuming that the Regional Trial Court did
not order the said dismissal, petitioner’s special civil action,
questioning the denial of her notice of appeal, would still fail.
Note that petitioner filed an application for probation. Section
7, Rule 120, of the Rules on Criminal Procedure is explicit
that a judgment in a criminal case becomes final when the
accused has applied for probation. This is totally in accord
with Section 4 of Presidential Decree No. 968 (Probation
Law of 1976, as amended), which in part provides that the
filing of an application for probation is deemed a waiver of
the right to appeal. 12 Thus, there was no more opportunity
for petitioner to exercise her right to appeal, the judgment
having become final by the filing of an application for
probation.
WHEREFORE, in view of all the foregoing, the petition
is DENIED. The assailed February 9, 1998 and February 25,
1999 Orders of the Regional Trial Court of Bohol, Branch 3,
in SP. Civil Case No. 5881 are AFFIRMED.
SO ORDERED.
-----------------------------XXX----------------------------------
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner, vs. COURT OF
APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a
penitent qualified offender. It essentially rejects appeals and
encourages an otherwise eligible convict to immediately
admit his liability and save the state of time, effort and
expenses to jettison an appeal. The law expressly requires
that an accused must not have appealed his conviction
before he can avail of probation. This outlaws the element
of speculation on the part of the accused — to wager on the
result of his appeal — that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand,
and the service of his sentence inevitable, he now applies
for probation as an "escape hatch" thus rendering nugatory
the appellate court's affirmance of his conviction.
Consequently, probation should be availed of at the first
opportunity by convicts who are willing to be reformed and
rehabilitated, who manifest spontaneity, contrition and
remorse.
As conceptualized, is petitioner entitled to probation within
the purview of P.D. 968, as amended by P.D. 1257 and P.D.
1990?

Petitioner's woes started when as President and General
Manager of ASPAC Trans. Company he failed to control his
outburst and blurted —
You employees in this office are all tanga, son of a bitches
(sic), bullshit. Puro kayo walang utak . . . . Mga anak ng puta
. . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of
multiple grave oral defamation in five (5) separate
Informations instituted by five (5) of his employees, each
Information charging him with gravely maligning them on
four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the
Metropolitan Trial Court of Makati, Br. 61, found petitioner
guilty of grave oral defamation in four (4) of the five (5) cases
filed against him, i.e., Crim. Cases Nos. 105206, 105207,
105209 and 105210, sentenced him to a prison term of one
(1) year and one (l) day to one (1) year and eight (8) months
of prision correccional "in each crime committed on each
date of each case, as alleqed in the information(s)," ordered
him to indemnify each of the offended parties, Victoria
Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and
Marie Solis, P10,000.00 as exemplary damages, and
P5,000.00 for attorney's fees, plus costs of suit.1 He was
however acquitted in Crim. Case No. 105208 for persistent
failure of the offended party, Edgar Colindres, to appear and
testify.
Not satisfied with the Decision of the MeTC, and insisting on
his innocence, petitioner elevated his case to the Regional
Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59,
affirmed his conviction but appreciated in his favor a
mitigating circumstance analogous to passion or
obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the
defamatory words complained of . . . . he must have been
angry and worried "about some missing documents . . . as
well as the letter of the Department of Tourism advising
ASPAC about its delinquent tax of P1.2 million . . . . " the
said defamatory words must have been uttered in the heat
of anger which is a mitigating circumstance analogous to
passion or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . .
Page 47 of 53
. . "3 After he failed to interpose an appeal therefrom the
decision.of the RTC became final. The case was then set for
execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But·before he
could be arrested petitioner filed an application for probation
which the MeTC denied "in the light of the ruling of the
Supreme Court in Llamado v. Court of Appeals, G.R. No,
84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which
on 2 July 1992 dismissed his petition on the following
grounds —
Initially, the Court notes that the petitioner has failed to
comply with the provisions of Supreme Court Circular No.
28-91 of September 4, 1991. Violation of the circular is
sufficient cause for dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the
petition that he had asked the respondent court to reconsider
its above order; in fact, he had failed to give the court
an.opportunity to correct itself if it had, in fact, committed
any error on the matter. He is, however, required to move for
reconsideration of the questioned order before filing a
petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This
failure is fatal to his cause. It is a ground for dismissal of his
petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao
v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public
Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit
any capricious, arbitrary, despotic or whimsical exercise of
power in denying the petitioner's application for probation . .
..
Fourthly, the petition for probation was filed by the petitioner
out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the
trial court to grant probation after conviction, upon an
application by the defendant within the period of appeal,
upon terms and conditions and period appropriate to each
case, but expressly rules out probation where an appeal has
been taken . . . . 5
The motion for reconsideration was likewise denied.

In the present recourse, petitioner squirms out of each
ground and seeks this Court's compassion in dispensing
with the minor technicalities which may militate against his
petition as he now argues before us that he has not yet lost
his right to avail of probation notwithstanding his appeal from
the MeTC to the RTC since "[t]he reason for his appeal was
precisely to enable him to avail himself of the benefits of the
Probation Law because the original Decision of the
(Metropolitan) Trial Court was such that he would not then
be entitled to probation." 6 He contends that "he appealed
from the judgment of the trial court precisely for the purpose
of reducing the penalties imposed upon him by the said court
to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still
qualified to avail of probation even after appealing his
conviction to the RTC which affirmed the MeTC except with
regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its
benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of
grace and clemency or immunity conferred by the state
which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense of which he stands
convicted. 9 It is a special prerogative granted by law to a
person or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon the
discretion of the court which is to be exercised primarily for
the benefit of organized society, and only incidentally for the
benefit of the accused.10 The Probation Law should not
therefore be permitted to divest the state or its government
of any of the latter's prerogatives, rights or remedies, unless
the intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms of
the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which
clearly mandates that "no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction," nor Llamado v.
Court of Appeals 11 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application
of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not
bar the accused from applying for probation if the appealis
solely to reduce the penalty to within the probationable limit
may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence.
Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals—
Page 48 of 53
. . . we note at the outset that Probation Law is not a penal
statute. We, however, understand petitioner's argument to
be really that any statutory language that appears to favor
the accused in acriminal case should be given.a "liberal
interpretation." Courts . . . have no authority to invoke "liberal
interpretation" or "the spirit of the law" where the words of
the statute themselves, and·as illuminated by the history of
that statute, leave no room for doubt or interpretation. We do
not believe that "the spirit of·the law" may legitimately be
invoked to set at naught words which have a clear and
definite meaning imparted to them by our procedural law.
The "true legislative intent" must obviously be given effect
by judges and all others who are charged with the
application and implementation of a statute. It is absolutely
essential to bear in mind, however, that the spirit of the law
and the intent that is to be given effect are derived from the
words actually used by the law-maker, and not from some
external, mystical or metajuridical source independent of
and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict
interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which too frequently
impede a disciplined and principled search for the meaning
which the law-making authority projected when it
promulgated the language which we must apply. That
meaning is clearly visible in the text of Section 4, as plain
and unmistakable as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact written. There is no
need for the involved process of construction that petitioner
invites us to engage in, a process made necessary only
because petitioner rejects the conclusion or meaning which
shines through the words of the statute. The first duty of the
judge is to take and apply a statute as he finds it, not as he
would like·it to be. Otherwise, as this Court in Yangco v.
Court of First Instance warned, confusion and uncertainty
will surely follow, making, we might add, stability and
continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements which tinge
words as to give them the color of a particular judicial theory
are not only unnecessary but decidedly harmful. That which
has caused so much confusion in the law, which has made
it so difficult for the public to understand and know what the
law is with respect to a given matter, is in considerable
measure the unwarranted interference by judicial tribunals
with the English language as found in statutes and contracts,
cutting the words here and inserting them there, making
them fit personal ideas of what the legislature ought to have
done or what parties should have agreed upon, giving them
meanings which they do not ordinarily have cutting,
trimming, fitting, changing and coloring until lawyers
themselves are unable to advise their clients as to the
meaning of a given statute or contract until it has been

submitted to some court for its interpretation and
construction.
The point in this warning may be expected to become
sharper as our people's grasp of English is steadily
attenuated. 12
Therefore, that an appeal should not·bar the accused from
applying for probation if the appeal is taken solely to reduce
the penalty is simply contrary to the clear and express
mandate of Sec, 4 of the Probation Law, as amended, which
opens with a negativeclause, "no application for probation
shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction." In
Bersabal v. Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule
of statutory construction. negative words and phrases are to
be regarded as mandatory while those in the affirmative are
merely directory. . . . the use of the term "shall" further
emphasizes its mandatory character and means that it is
imperative, operating to impose a duty which may be
enforced.
And where the law does not distinguish the courts should not
distinguish; where the law does not make exception the court
should not except.
Second. At the outset, the penalties imposed by the MeTC
were already probationable. Hence, there was no need to
appeal if only to reduce the penalties to within the
probationable period. Multiple prison terms imposed against
an accused found guilty of several offenses in one decision
are not, and should not be, added up. And, the sum of the
multiple prison terms imposed against an applicant should
not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms
are distinct from each other, and if none of the terms
exceeds the limit set out in the Probation Law,i.e., not more
than six (6) years, then he is entitled to probation, unless he
is otherwise specifically disqualified. The number of offenses
is immaterial as long as all the penalties imposed, taken
separately, are within the probationable period. For, Sec. 9,
par. (a), P.D. 968, as amended, uses the word maximum not
total when it says that "[t]he benefits of this Decree shall not
be extended to those . . . . sentenced to serve a maximum
term of imprisonment of more than six years." Evidently, the
law does not intend to sum up the penalties imposed but to
take each penalty separately and distinctly with the others.
Consequently, even if petitioner was supposed to have
served his prison term of one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional sixteen
Page 49 of 53
(16) times as he was sentenced to serve the prison term for
"each crime committed on each date of each case, as
alleged in the information(s)," and in each of the four (4)
informations, he was charged with.having defamed the four
(4) private complainants on four (4) different, separate days,
he was still·eligible for probation, as each prison term
imposed on petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that
those sentenced to higher penalties pose too great a risk to
society, not just because of their demonstrated capability for
serious wrong doing but because of the gravity and serious
consequences of the offense they might further commit. 14
The Probation Law, as amended, disqualifies only those who
have been convicted of grave felonies as defined in Art. 9 in
relation to Art. 25 of The Revised Penal Code, 15 and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is
principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to
a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus
may avail of probation.
To demonstrate the point, let ustake for instance one who is
convicted in a single decision of, say, thirteen (13) counts of
grave oral defamation (for having defamed thirteen [13]
individuals in one outburst) and sentenced to a total prison
term of thirteen (13) years, and another who has been found
guilty of mutilation and sentenced to six (6) years and one
(l) day of prision mayor minimum as minimum to twelve (l2)
years and one (1) day of reclusion temporal minimum as
maximuin. Obviously, the latter offender is more perverse
and is disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that
under the MeTC Decision he could not have availed of the
benefits of probation. Since he could have, although he did
not, his appeal now precludes him from applying for
probation.
And, even if we go along with the premise of petitioner,
however erroneous it may be, that the penalties imposed
against him should be summed up, still he would not have
qualified under the Decision rendered by the RTC since if
the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16)
times, the total imposable penalty would be ten (10) years
and eight (8) months, which is still way beyond the limit of
not more than six (6) years provided for in the Probation
Law, as amended. To illustrate: 8 months multiplied by 16
cases = 128 months; 128 months divided by 12 months (in a

year) = 10 years and 8 months, hence, following his
argument, petitioner cannot still be eligible for probation as
the total of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be
multiplied only four (4) times since there are only four (4)
Informations thereby allowing petitioner to qualify for
probation, instead of sixteen (16) times, is quite difficult to
understand. The penalties imposed by the MeTC cannot be
any clearer — "one (1) year and one (1) day to one (1) year
and eight (8) months of prision correccional, in each crime
committed on each date of each case, as alleged in the
information(s). "Hence, petitioner should suffer the imposed
penalties sixteen (16) times. On the other hand, the RTC
affirmed, the judgment of conviction and merely reduced the
duration of each penalty imposed by the MeTC "in each case
to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" on account of a mitigating circumstance for
each case, count or incident of grave oral defamation·There
is no valid reason therefore why the penalties imposed by
the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed
the MeTC as regards the culpability of petitioner in each of
the sixteen (16) cases and reducing only the duration of the
penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered
by the trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the
above entitled cases and appreciating in his favor the
mitigating circumstance which is analogous to passion or
obfuscation, the Court hereby sentences the said accused
in each case to a straight penalty of EIGHT (8) MONTHS
imprisonment, with the accessory penalties prescribed by
law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at
that the accused was acquitted or absolved in any of the four
(4) counts under each of the four (4) Informatfons, or that
any part of thejudgment of conviction was reversed, or that
any of the cases, counts or incidents was dismissed.
Otherwise, we will have to account for the twelve (12) other
penalties imposed by the MeTC. Can we? What is clear is
that the judgment of conviction rendered by the was affirmed
with the sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not
be summed up but taken separately as the totality of all the
penalties is not the test, petitioner should have immediately
filed an application for probation as he was already qualified
Page 50 of 53
after being convicted by the MeTC, if indeed thereafter he
felt humbled, was ready to unconditionally accept the verdict
of the court and admit his liability. Consequently, in
appealing the Decision of the MeTC to the RTC, petitioner
lost his right to probation. For, plainly, the law considers
appeal and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even
correct the penalties imposed by the MeTC, but to assert his
innocence. Nothing more. The cold fact is that petitioner
appealed his conviction to the RTC not for the sole purpose
of reducing his penalties to make him eligible for probation
— since he was already qualified under the MeTC Decision
— but rather to insist on his innocence. The appeal record is
wanting of any other purpose. Thus, in his Memorandum
before the RTC, he raised only three (3) statements of error
purportedly committed by the MeTC all aimed at his
acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the
witness for the prosecution; (b) in giving full faith and
credence to the bare statements of the private complainants
despite the absence of corroborating testimonies; and, (c)in
not acquitting him in all the cases," 18 Consequently,
petitioner insisted that the trial court committed an error in
relying on his positive identification considering that private
complainants could not have missed identifying him who was
their President and General Manager with whom they
worked for a good number of years. Petitioner further argued
that although the alleged defamatory words were uttered in
the presence of other persons, mostly private complainants,
co-employees and clients, not one of them was presented
as a witness. Hence, according to petitioner, the trial court
could not have convicted him on the basis of the
uncorroborative testimony of private complainants. 19
Certainly, the protestations of petitioner connote profession
of guiltlessness, if not complete innocence, and do not
simply put in issue the propriety of the penalties imposed.
For sure, the accused never manifested that he was
appealing only for the purpose of correcting a wrong penalty
— to reduce it to within the probationable range. Hence,
upon interposing an appeal, more so after asserting his
innocence therein, petitioner should be precluded from
seeking probation. By perfecting his appeal, petitioner ipso
facto relinquished his alternative remedy of availing of the
Probation Law the purpose of which is simply to prevent
speculation or opportunism on the part of an accused who
although already eligible does not at once apply for
probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his
conviction by the RTC to the Court of Appeals does not
necessarily mean that his appeal to the RTC was solely to
reduce his penalties. Conversely, he was afraid that the
Court of Appeals would increase his penalties, which could

be worse for him. Besides, the RTC Decision had already
become final and executory because of the negligence,
according to him, of his former counsel who failed to seek
possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner,
in accordance with Sec 3, par. (e), Rule 117 of the Rules of
Court, 20 should have moved to quash as each of the four
(4) Informations filed against him charged four (4) separate
crimes of grave oral defamation, committed on four (4)
separate days. His failure to do so however may now be
deemed a waiver under Sec. 8 of the same Rule 21 and he
can be validly convicted, as in the instant case, of as many
crimes charged in the Information.
Fourth. The application for probation was filed way beyond
the period allowed by law. This is vital way beyond the period
allowed by law and crucial. From the records it is clear that
the application for probation was filed "only after a warrant
for the arrest of petitioner had been issued . . . (and) almost
two months after (his) receipt of the Decision" 22 of the RTC.
This is a significant fact which militates against the instant
petition. We quote with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court of
Appeals Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out
of time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:
Sec. 4. Grant of Probation. — Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal. . . .
place the defendant on probation . . . .
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's
judgment is allowed by law, the petitioner's plea for
probation was filed out of time. In the petition is a clear
statement that the petitioner was up for execution of
judgment before he filed his application for probation. P.D.
No. 968 says that the application for probation must be filed
"within the period for perfecting an appeal;" but in this case,
such period for appeal had passed, meaning to say that the
Regional Trial Court's decision had attained finality, and no
appeal therefrom was possible under the law. Even granting
that an appeal from the appellate court's judgment is
contemplated by P.D. 968, in addition to the judgment
rendered by the trial court, that appellate judgment had
become final and was, in fact, up for actual execution before
the application for probation was attempted by the petitioner.
Page 51 of 53
The petitioner did not file his application for probation before
the finality of the said judgment; therefore, the petitioner's
attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that
an application for probation may yet be granted even if it was
filed only after judgment has become final, the conviction
already set for execution and a warrant of arrest issued for
service of sentence.
The argument that petitioner had to await the remand of the
case to the MeTC, which necessarily must be after the
decision of the RTC had become final, for him to file the
application for probation with the trial court, is to stretch the
law beyond comprehension. The law, simply, does not allow
probation after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies, and
petitioner appealed from his conviction by the MeTC
although the imposed penalties were already probationable,
and in his appeal, he asserted only his innocence and did
not even raise the issue of the propriety of the penalties
imposed on him, and finally, he filed an application for
probation outside the period for perfecting an appeal
granting he was otherwise eligible for probation, the instant
petition for review should be as it is hereby DENIED.
SO ORDERED.
----------------------------XXX-----------------------------------
3. Indeterminate Sentence Law (RA 4103)
ACT NO. 4103 – AN ACT TO PROVIDE FOR AN
INDETERMINATE SENTENCE AND PAROLE FOR ALL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE
COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A
BOARD OF INDETERMINATE SENTENCE AND TO
PROVIDE FUNDS THEREFOR; AND FOR OTHER
PURPOSES
Section 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the

maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the
minimum term prescribed by the same. (As amended by Act
No. 4225.)
Sec. 2. This Act shall not apply to persons convicted of
offenses punished with death penalty or life-imprisonment;
to those convicted of treason, conspiracy or proposal to
commit treason; to those convicted of misprision of treason,
rebellion, sedition or espionage; to those convicted of piracy;
to those who are habitual delinquents; to those who have
escaped from confinement or evaded sentence; to those
who having been granted conditional pardon by the Chief
Executive shall have violated the terms thereof; to those
whose maximum term of imprisonment does not exceed one
year, not to those already sentenced by final judgment at the
time of approval of this Act, except as provided in Sec. 5
hereof. (As amended by Act No. 4225.)
Sec. 3. There is hereby created a Board of Pardons and
Parole to be composed of the Secretary of Justice who shall
be its Chairman, and four members to be appointed by the
President, with the consent of the Commission on
Appointments who shall hold office for a term of six years:
Provided, That one member of the board shall be a trained
sociologist, one a clergyman or educator, one psychiatrist
unless a trained psychiatrist be employed by the board, and
the other members shall be persons qualified for such work
by training and experience. At least one member of the
board shall be a woman. Of the members of the present
board, two shall be designated by the President to continue
until December thirty, nineteen hundred and sixty-six and the
other two shall continue until December thirty, nineteen
hundred and sixty-nine. In case of any vacancy in the
membership of the Board, a successor may be appointed to
serve only for the unexpired portion of the term of the
respective members. (As amended by Republic Act No.
4203, June 19, 1965.)
Sec. 4. The Board of Pardons and Parole is authorized to
adopt such rules and regulations as may be necessary for
carrying out its functions and duties. The Board is
empowered to call upon any bureau, office, branch,
subdivision, agency or instrumentality of the Government for
such assistance as it may need in connection with the
performance of its functions. A majority of all the members
shall constitute a quorum and a majority vote shall be
necessary to arrive at a decision. Any dissent from the
majority opinion shall be reduced to writing and filed with the
records of the proceedings. Each member of the Board,
including the Chairman and the Executive Officer, shall be
entitled to receive as compensation fifty pesos for each
meeting actually attended by him, notwithstanding the
provisions of Section two hundred and fifty-nine of the
Revised Administrative Code, and in addition thereto,
reimbursement of actual and necessary travelling expenses
incurred in the performance of duties: Provided, however,
Page 52 of 53
That the Board meetings will not be more than three times a
week. (As amended by Republic Act No. 4203, June 19,
1965.)
Sec. 5. It shall be the duty of the Board of Indeterminate
Sentence to look into the physical, mental and moral record
of the prisoners who shall be eligible to parole and to
determine the proper time of release of such prisoners.
Whenever any prisoner shall have served the minimum
penalty imposed on him, and it shall appear to the Board of
Indeterminate Sentence, from the reports of the prisoner’s
work and conduct which may be received in accordance with
the rules and regulations prescribed, and from the study and
investigation made by the Board itself, that such prisoner is
fitted by his training for release, that there is a reasonable
probability that such prisoner will live and remain at liberty
without violating the law, and that such release will not be
incompatible with the welfare of society, said Board of
Indeterminate Sentence may, in its discretion, and in
accordance with the rules and regulations adopted
hereunder, authorize the release of such prisoner on parole,
upon such terms and conditions as are herein prescribed
and as may be prescribed by the Board. The said Board of
Indeterminate Sentence shall also examine the records and
status of prisoners who shall have been convicted of any
offense other than those named in Sec. 2 hereof, and have
been sentenced for more than one year by final judgment
prior to the date on which this Act shall take effect, and shall
make recommendation in all such cases to the Governor-
General with regard to the parole of such prisoners as they
shall deem qualified for parole as herein provided, after they
shall have served a period of imprisonment not less than the
minimum period for which they might have been sentenced
under this Act for the same offense.
Sec. 6. Every prisoner released from confinement on parole
by virtue of this Act shall, at such times and in such manner
as may be required by the conditions of his parole, as may
be designated by the said Board for such purpose, report
personally to such government officials or other parole
officers hereafter appointed by the Board of Indeterminate
Sentence for a period of surveillance equivalent to the
remaining portion of the maximum sentence imposed upon
him or until final release and discharge by the Board of
Indeterminate Sentence as herein provided. The officials so
designated shall keep such records and make such reports
and perform such other duties hereunder as may be required
by said Board. The limits of residence of such paroled
prisoner during his parole may be fixed and from time to time
changed by the said Board in its discretion. If during the
period of surveillance such paroled prisoner shall show
himself to be a law-abiding citizen and shall not violate any
of the laws of the Philippine Islands, the Board of
Indeterminate Sentence may issue a final certificate of
release in his favor, which shall entitle him to final release
and discharge.
 Page 53 of 53

Sec. 7. The Board shall file with the court which passed
judgment on the case, and with the Chief of Constabulary, a
certified copy of each order of conditional or final release
and discharge issued in accordance with the provisions of
the next preceding two sections.

Sec. 8. Whenever any prisoner released on parole by virtue

of this Act shall, during the period of surveillance, violate any
of the conditions of his parole, the Board of Indeterminate
Sentence may issue an order for his re-arrest which may be
served in any part of the Philippine Islands by any police
officer. In such case the prisoner so re-arrested shall serve
the remaining unexpired portion of the maximum sentence
for which he was originally committed to prison, unless the
Board of Indeterminate Sentence shall, in its discretion,
grant a new parole to the said prisoner. (As amended by Act
No. 4225.)

Sec. 9. Nothing in this Act shall be construed to impair or

interfere with the powers of the Governor-General as set
forth in Sec. 64(i) of the Revised Administrative Code or the
Act of Congress approved August 29, 1916 entitled “An Act
to declare the purpose of the people of the United States as
to the future political status of the people of the Philippine
Islands, and to provide a more autonomous government for
those Islands.”

Sec. 10. Whenever any prisoner shall be released on parole

hereunder he shall be entitled to receive the benefits
provided in Sec. 1751 of the Revised Administrative Code.

Approved and effective on December 5, 1993.

-----------------------------xxx----------------------