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question Benhar Isa in connection with the killing of Pichel, Jr. Was it fear of the notorious policecharacter that made the police officers disregard the possible connection between the slaying of Ramonand that of the person (Harun Acan y Arang of the Ministry of National Defense) 29 who was allegedlystabbed by Benhar Isa a day after the killing of Ramon Jr.? And yet questioning Isa might have providedthat vital link to the resolution of Usman's guilt or innocence. But why should the police officers investigateIsa when Usman Hassan was already in custody and could be an available fall guy? Usman Hassan,instead, became a victim of a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight toprove his innocence. And he is so marginalized as to claim and deserve an honest-to-goodness,thorough, and fair police investigation with all angles and leads pursued to their logical, if not scientific,conclusions. Sadly circumstanced as he is, the authority of the State was too awesome for him tocounteract.

The appealed decision made much ado of the admission by Usman "that he was arrested at the former barter trade, which is a place just across the place of the stabbing at the Fruit Paradise." 30 The trial judgefound it "therefore strange that on the very evening of the stabbing incident he was still at the barter tradearea by 8:00 o'clock in the evening when he usually comes to the city proper at about 6:00 o'clock in themorning and goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman'sexplanation that, at around 7:00 o'clock P.M., he was waiting for transportation to take him home was found by the trial court as 'flimsy and weak since he did not explain why he had to go home late thatevening." 32 But the whole trouble is nobody asked him. The trial judge did not propound any singlequestion to the accused, and only three to his mother on innocuous matters, by way of clarification, if onlyto put on record what the mother and son could articulate with clarity. Taking into account their povertyand illiteracy, the mother and son needed as much, if not more, help, than the trial judge extended to theprosecution witnesses during their examination by asking them clarificatory and mostly leading questions.In that sense and to that extent, the accused was disadvantaged.

A fact that looms large, though mutely to testify on the innocence of the accused but the importance of which was brushed away by the trial judge was the presence of the accused near the scene (about 100 to150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although Police CorporalCarpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a companion. If he werethe assailant, he would have fled. But the trial court instead indulged in conjecture, foisting the probabilitythat the accused 'was lulled by a false sense of security in returning to the place (of the stabbing), whenno police officers immediately responded and appeared at the scene of the crime," adding 'there arenumerous cases in the past where criminals return to the scene of their crimes, for reasons onlypsychologist can explain." 33 It must have escaped the trial court's attention that Usman has no criminalrecord, and, therefore, he could not be generally classed with criminals. In the second place, the trialcourt's rationalization ignores the biblical truism recognized by human nature and endorsed with approvalby this Court that "(T)he wicked flee when no man pursueth but the righteous are as bold as a lion." 34

And now as a penultimate observation, we could not help but note the total absence of motive ascribed toUsman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive is not essentialin order to arrive at a conviction, because, after all, motive is a state of mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of guilty must stem from proof beyondreasonable doubt, the lack of motive on the part of the accused plays a pivotal role towards his acquittal.This is especially true where there is doubt as to the Identity of the culprit 36 as when 'the Identification isextremely tenuous," 37 as in this case.

We can not end this travail without adverting to the cavalier manner in which the trial court disregardedthe claimed young age of Usman Hassan.

The defense claims that the accused Usman Hassan is a minor, basing such claim on thetestimony of Lahunay Hassan, the mother of said accused, who declared that her sonUsman Hassan, who is one of her four (4) children, was born in the year 1967. Shetestified that she was just told by a person coming from their place about the year of thebirth of her son Usman. However on cross-examination, Lahunay Hassan cannot evenremember the date or year of birth of her other children. The failure of Lahunay Hassanto remember the date or year of birth of her children is of course understandable,considering that she is unschooled and she belongs to a tribe that does not register births, deaths or marriages, however, it is strange that she only took pains to find out theyear of birth of her son Usman. For this reason, the Court granted a motion of thedefense on September 13, 1982, to have the herein accused examined by a competentdentist to determine his age. However, the findings of the dentist of Zamboanga GeneralHospital which is marked as Exhibit "5" shows the following: "age cannot be determinedaccurately under present mouth conditions. Approximately, he can be from 14 to 21 yearsof age." This simply means that the herein accused could either be 14 years of age or 21years of age, or any age in between those aforestated years. From the observation of thiscourt, the accused Usman Hassan was about 18 years of age at the time he committed


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this crime and this observation is based on his personal appearance, his size and facialfeatures and other personal characteristics, hence he can not be classified as a youthfuloffender under Article. 189 of Presendential Decree No. 603, as ammended byPresedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and People vs.Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled bythe Supreme Court that "In cases where the age of the culprit is at issue as a basis for claiming an exempting mitigating circumstance, it is incumbent upon the accused toestablish that circumstance ad any other elements of defense. 38

Considering that the age of the accused could exempt him from punishment or cause the suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if found guilty, moremeticulousness and care should have been demanded of medical or scientific sources, and less relianceon the observation of the judge as had happened in this case. The preliminary findings of the dentist thatthe accused could be anywhere between fourteen to twenty one years, despite the difficulty of arriving atan accurate determination due to Hassan's mouth condition, would have placed the trial judge on noticethat there is the probability that the accused might be exempted from criminal liability due to his youngage. All the foregoing indicates that the accused had not been granted the concern and compassion withwhich the poor, marginalized, and disadvantaged so critically deserve. It is when judicial and policeprocesses and procedures are thoughtlessly and haphazardly observed that cries of the law and justicebeing denied the poor are heard. In any event, all this would not be of any moment now, considering theacquittal of the accused herein ordered.

WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is held for another legal cause. With costs de oficio.

SO ORDERED.

Yap (Chairman), P aras and P adilla, JJ., concur.


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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-41462 April 15, 1988

PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.REMY DIO,accused-appellant.

The Solicitor General for plaintiff-appellee.

Efrain B. Treas for accused-appellant.

MELENCIO-HERRERA,J.:

Originally, this was an appeal by the three accused. Remy Dio, Jose Dequito and Salvador Dequito fromthe Decision of the then Court of First Instance of Iloilo , Branch III, finding each of them guilty of three (3)crimes of Rape with Homicide and sentencing each one to three (3) penalties of reclusion perpetua ; toindemnify the heirs of Melinda Boglosa, jointly and severally, in the sum of P12,000.00; and to pay thecosts.

On November 26, 1985, accused Salvador Dequito and Jose Dequito filed an Urgent Motion to Withdraw Appeal, which was granted by the Court, and entry of judgment in their respect was made on December 13, 1985 (p. 172, Rollo).

The evidence for the prosecution is summarized in the People's Brief, thus:

Jose and Salvador, both surnamed Dequito, Remy Dio and one Melinda Boglosa wereall from the barrio of Tambuelan, Municipality of Dumangas, Iloilo (p. 7, tsn, May 3,1974).

On November 13, 1973 at about noontime, while Roberto Dumancas, a ten-year old boyand a relative of Remy Dio was herding his carabao in a ricefield situated at Sitio Sapa,Barrio Tambuelan, Municipality of Dumangas, Iloilo, he saw Jose and Salvador Dequitoand Remy Dio at about a distance of fifty (50) meters away (pp. 5, 6, 17, 26, tsn, May 3,1974). Shortly after, Roberto Dumancas saw Melinda Boglosa come along (pp. 8, 27, tsn,May 3, 1974). As Melinda neared the group, Salvador Dequito suddenly pulled her downwhich caused both of them to fall on the rice paddy (p. 8, tsn, May 3, 1974). Remy Dioheld the hands of Melinda, while Jose Dequito, held her legs (pp. 8, 9, tsn, May 3, 1974).Thereafter, Salvador Dequito took off his pants and underwear and went on top of Melinda and had carnal knowledge of her (p. 9, tsn, May 3, 1974). Jose Dequito andRemy Dio then took turns ravishing Melinda Boglosa (pp. 11, tsn, May 3, 1974). Whenthe three were through with their beastly act, Salvador Dequito choked Melinda Boglosaand with an engine cranker, struck her on the forehead (pp. 12, 14, t.s.n, May 3, 1974).Then the three dragged Melinda Boglosa and pushed her head on the ground which wasknee-deep with water. She was later found dead (p. 14, tsn, May 3, 1974).

It appears that at the start of the above-described incident, Roberto Dumancas soughtcover behind some talahib from where he witnessed the incident in its entirety (p. 15, tsn,May 3, 1974).

After the incident, Roberto Dumancas returned to his carabao, which was a meter awayfrom where he was hiding (p. 15, tsn, May 3, 1974), and then went home. He told arelative named Fe of the incident he had witnessed (pp. 16, 18, 27, tsn, May 3, 1974).

Days after the incident, Roberto Dumancas was brought by a PC soldier to Barotac,Nuevo Iloilo where he was investigated regarding the incident (pp. 18, 19, 29, tsn, May 3,1974). Afterwards, he was brought to Fort San Pedro, Iloilo City, headquarters of the


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Philippine Constabulary where he signed a statement (p. 19, tsn, May 3, 1974; Exh. "A"p. 55, Records).

Remy Dio also gave a written statement on November 19, 1973, before PC Soldier Ismael Suyo confessing his participation in the crime as well as those of his companions,Salvador and Jose Dequito (pp. 83, 84, 87, tsn May 30, 1974; p. 9, tsn, May 31, 1974;

Exh. "C" p. 57, Records). The said confession was sworn to and subscribed before Atty.Salvador Solis, Assistant Clerk of Court of the Court of First Instance, Iloilo (p. 75, tsn,May 30, 1974; pp. 42, 45, 46, tsn, May 31, 1974). (pp. 2-4, Brief for the Appellee).

The Necropsy Report of the NBI Medico-Legal Officer gave the following:

P ost Mortem Findings:

Height148 cms. Weight115 lbs.

Well developed, healthy victim, froth with blood coming out of both nostrils, around 22hours dead.

WOUND 1 -1/2 cms. x 0.2 cms. 75 degrees perpendicular to the left, right side neck, 128cms. from the heel of the feet right, 7 cms. from the median line, at the level of hyoidbone of the neck.

GENITALIAHymen-laceration, deep at 3:00 blood coming out from the site. Vaginal,filled with viscid, albuminous fluid with faint grayish-yellow color, having the characteristicof fishy odor.

MICRO-CHEMICAL EXAMINATION OF THE FLUID CONTENT OF THE VAGINA

1. Positive for seminal fluid

2. Positive for spermatozoa

CONCLUSION

1. Sexually abused

2. Died of asphyxia by strangulation and drowning.

On the other hand, the evidence for the accused-appellant, Remy Dio, as narrated in hisBrief, reads in full as follows:

... the Lower Court found the evidence for the accused Remy Dio which consisted of the

testimonies of the following witnesses:

Marcelino Dequito, 62 years old, a fishpond watcher and resident of Barrio Tambuelan,Dumangas, Iloilo testified that he knows the accused Remy Dio and the two other accused Salvador Dequito and Jose Dequito since they were small.

In the morning of November 13, 1973, he saw Remy Dio in the house of DominicDoronilla, which was near his house, together with other persons and they were singing.

Before lunch on that day, Remy Dio went to his house and he told him to wait for hisfather (Remy's father) who was arriving from Barotac, Nuevo, Iloilo after lunch and hewould be bringing some ice and also to borrow the carabao and cart of Violeta Donguilaso that he can load the ice on it to bring it to the fishpond as they were harvesting fishthat evening.

Remy left to go to the house of Violeta which was also near by and later had lunch at his,house and came back while they were having lunch.

In his house then was living an American Peace Corps by the name of Kathleen Hustace. After lunch that day, she (Kathleen) and Remy Dio fed the birds.


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After lunch, he (Marcelino Dequito) left for his farm which was about one-half kilometer away and when he left his house he still saw Remy and Kathleen feeding the birds.

While going to his farm he saw Simon Dequito who was calling for him and when he wentto the place where he was standing, he saw that there was a body of a girl and they bothhelped each other to place the body on the rice paddy in order to revive her as she was

still warm but they found that she was already dead.

Simon Dequito called for help from the neighborhood while he went back to the barrio toinform Teopisto Dumayas, the Barrio Captain. The Barrio Captain then requestedsomebody to inform the authorities in the Poblacion, while he went to his house to restand later on he went to the fishpond as they were going to harvest fish that evening. Inthe fishpond he saw the accused Remy Dio, who was then there and who brought theice together with his father. They harvested the fish that evening and they, together withRemy Dio returned to the barrio the next day (t.s.n., pp. 117-151; Sept. 12, 1974).

The next witness Kathleen Hustace testified that she was an American Peace Corpsassigned to the Philippines. She arrived in the Philippines in August, 1973 and in theBarrio of Tambuelan, Dumangas, Iloilo in September, 1973.

In Barrio Tambuelan, she stayed at the house of Marcelino Dequito (who testified beforeher). She knows Remy Dio and in the morning of November 13, 1973, she saw Remy inthe house of Dominic Doronila, which was nearby, singing with other boys.

After lunch, she and Remy Dio fed the birds and a little before one o'clock she went upthe house to change and left afterwards as she had an appointment (t.s.n., pp. 151-197;September 12, 1974).

The third witness was the accused Remy Dio who testified that he is one of the accusedin this case. That in the morning of November 13, 1973, he, together with other boyswere singing at the house of Dominic Doronila.

Later he went to the house of Marcelino Dequito, which was also nearby and Marcelinotold him to borrow the carabao and cart of Violeta Donguila as his father was arrivingfrom Barotac Nuevo, Iloilo, after lunch with the ice which they were going to use to freezethe fish they were going to harvest that evening, and he and his father were supposed toload the ice in said cart to bring it to the fishpond.

Because of said request of Marcelino, he borrowed the carabao and cart of Violeta andthen went to his house for lunch. After lunch, he went back to the house of Marcelino andfound them still having lunch. After lunch, he and Kathleen Hustace, an American PeaceCorps living in the house of Marcelino Dequito fed the birds until a little before one o'clockwhen Kathleen went upstairs to change and later left.

In the meantime, he waited for his father who later on arrived at around two o'clock in theafternoon in a tricycle from Barotac Nuevo, Iloilo, with the ice which they loaded in thecart of Violeta and which they brought to Palok Bigki, a distance of about one and a half kilometers away, there to be unloaded and brought to the fishpond by boat.

Thereafter, he returned the carabao and cart to Violeta and returned to Palok Bigki andhelped his father load the ice to the boat and brought it to the fishpond to be used in theharvest of the bangus fish that evening. That evening he was in the fishpond together with his father, Marcelino Dequito and others harvest bangus and returned to the barrioonly the next morning.

On November 18, 1973 he was arrested by two PC soldiers, one of whom he came toknow as Sgt. Ledesma, together with Salvador Dequito and they were brought to the PC

Detachment at Barotac Nuevo, Iloilo at around 10:00 o'clock in the morning of the saiddate.

In the evening they were investigated by Sgt. Ybarzabal in connection with the rape anddeath of the said girl by the name of Melinda Boglosa but he vehemently denied havinganything to do with it. Because of his denial, he was boxed, pushed and kicked by the PCsoldiers who wanted him to admit that he committed the crime but he continued to denythat he had any connection with the same.


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His companion Salvador Dequito was also investigated.

After he was investigated he was set out of the room and told by Sgt. Ledesma to run buthe did not run and embraced Sgt. Ledesma as he was afraid to run because he might beshot; on the contrary he insisted that he did not commit the crime that they wanted him toadmit. In the next morning he was brought to the PC stockade at Fort San Pedro, Iloilo

City where he was again investigated and maltreated and because of the maltreatmenthe was forced to sign a document that which he was told, if he will sign he will bereleased.

While he was being investigated his companion Salvador Dequito was in the same roomand later on investigated and maltreated by the PC soldiers.

The next morning, he was brought to the Provincial Building before Atty. Salvador Solis of the Clerk of Court, who notarized his signature. He was afraid to complain to Atty. Solisabout the maltreatment as he was accompanied by PC soldiers who warned him not totell anybody what happened to him; thereafter, he was returned to the PC Stockadewhere he stayed for about three months where he was transferred to the Provincial Jail.

When he was transferred to the Provincial Jail he became ill because of the maltreatmentand in fact he was sent several times to the Provincial Hospital as he was spitting bloodbecause of his maltreatment.

He categorically denied having to do with the rape and killing of Melinda Boglosa (t.s.n.,pp. 163-197; October 8, 1974) and his testimony was corroborated by Salvador Dequitowho later on testified of the maltreatment that they suffered from the PC soldiers (t.s.n.,pp. 2-20; August 2, 1974; t.s.n., pp. 119-137, October 9, 1974). Thereafter, the threeaccused presented Teopisto Dumayas, a Barrio Captain of Barrio Tambuelan,Dumangas, Iloilo who testified that after he came to know of the maltreatment of the threeaccused, the barrio captain and Barrio Council of Barrio Tambuelan, Dumangas, Iloilo,filed a petition, dated December 8, 1973, Exh. "I," addressed to the ProvincialCommander complaining of said maltreatment but no action was done on the matter

(t.s.n., pp. 19-23; October 29, 1974).

The next witness Simon Dequito testified that he knows the accused Remy Dio as wellas the other accused since they were small. Remy Dio was in his house in the morningof November 13, 1973 but he (Simon Dequito) left the house after lunch to go to his farmaround one (1) kilometer away situated at Sitio Sapa, Barrio Tambuelan, Dumangas,Iloilo, which was planted with palay. It was raining in the morning and when he reachedhis farm he saw a body lying on the rice paddy. He looked around and saw PaquitaCagison and Marcelino Dequito and he shouted and waved at them to come. WhenMarcelino arrived he pulled out the head of the victim because the head was submergedin the mud and then Marcelino Dequito helped him to put the body on the top of the ricepaddy. As the body was still warm they put her on her side as she might still be alive andthe water might come out. He did not then recognize the victim. Later he went to the

house of Nicanor Divinagracia which was nearby if they recognized the victim but theydid not recognize the deceased. Marcelino Dequito on the other hand went to notifyTeopisto Dumayas, the Barrio Captain. Later Teopisto Dumayas, the Barrio Captainarrived and still later the police also arrived. He further stated that he did not request theaccused to plow that morning of November 13, 1973 because it was raining and therewas deep water in his field (t.s.n., pp. 73-117, Sept. 9, 1974).

Dr. Ricardo Jaboneta, medico legal officer of Iloilo City also testified that from his opinionas medico legal officer it is impossible to determine from a specific type of the semenwhether it came from two or more persons (t.s.n., pp. 225-247; November 19, 1974). (pp.5-12, Brief for Accused-Appellant Remy Dio)

In this appeal, appellant Remy Dio makes the following Assignments of Error:

I. The lower Court (through the Honorable Judge Numeriano G. Estenzo) erred indeciding the case without the transcript of stenographic notes of the testimony of all theaccused and their witnesses having been transcribed as he (Judge Estenzo) did not hear the testimony of the witness as all the witnesses (both the prosecution and accused)testified before then Judge Castrense C. Veloso but whose resignation was accepted bythe President before he can decide the case.


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II. The lower Court likewise erred in giving weight and credence to the unreliabletestimony of prosecution witness Roberto Dumancas.

III. The lower Court also erred in admit the alleged confession of the accused Remy Dio(Exh. "C") and in not finding the same as secured through force and intimidation.

IV. The lower Court further erred in not considering the defense of the accused RemyDio and in not believing the testimony of Kathleen Hustace, a peace corps assigned inthe barrio of the accused, that she and Remy Dio were together at the time the allegedcrime was committed.

V. The lower Court finally erred in convicting the accused Remy Dio of the crime of rapewith homicide and imposing three (3) penalties of reclusion perpetua.

The errors assigned are bereft of support from the evidence on record.

1. It is a fact that all the witnesses, both of the prosecution and the defense testified before then JudgeCastrense C. Veloso whose resignation, however, was accepted by the President before he could decidethe case. It was Judge Numeriano G. Estenzo, assigned temporarily to preside over Branch III, whoeventually rendered the Decision on June 30, 1975.

Notwithstanding that circumstance,

There is no provision of law which would preclude a Judge of the Court of First Instancefrom deciding a case on the basis of the oral and documentary evidence presentedbefore the first judge who resigned from the service without deciding the case, which oralevidence was taken by a stenographer and was produced before the second judge. Thisrule is rooted in practical considerations. Sometimes it is an impossibility for the judgewho tried the case to be the same judicial officer to decide it. The judge who tried thecase may die, resign or retire from the bench before he could render judgment thereon.In that case, We find no legal impediment to his successor's continuing with the trial or rendering judgment on the basis of the evidence submitted if the trial has beenterminated. It is sufficient that in such circumstances the judge, in deciding the case,must base it completely on the cold record before him, in the same manner as appellatecourts when they review the evidence of the case raised to them on appeal. (Villanuevavs. Estenzo, No. L-30050, June 27, 1975, 64 SCRA 407)

While it may be that not all of the stenographic notes had been transcribed at the time the judgment wasprepared, the more crucial ones were before the lower Court. Besides, the separate memoranda of thethree accused, particularly that of Remy Dio, summarized the major testimonies of witnesses for boththe prosecution and the defense and contained an exhaustive discussion of the facts of substanceessential to the defense of the respective accused. Thus, it was on the basis of the evidence of both theprosecution and the defense, with reference to stenographic notes when called for, that Judge Estenzorendered his Decision.

2. No error was committed by the Court in giving weight and credence to the testimony of the onlyprosecution eyewitness Roberto Dumancas, a ten-year old boy. He had positively identified appellantRemy Dio as one of the malefactors. The error committed in identification of the two other accused wasbecause he did not know them by their full Christian names but only by their nicknames. He had alsodescribed clearly and straigthforwardly the particular acts performed by each accused in the commissionof the crime. That said witness was familiar with the three accused cannot be doubted, all three beingfrom the same barrio as the witness himself.

Roberto's failure to inform his parents of the incident is not "contrary to human conduct," as claimed. Hecould have been too shocked at what he had witnessed, or he may have had certain inhibitions. He didreveal the incident, however, to a relative "Fe," also from the same barrio, on the same day of the incident(t.s.n., p. 28, May 3, 1974).

Roberto's age should not militate against his competence, the records of the proceedings showing thatthe Court found him a reliable and trusthworthy witness who was fully cognizant of the importance of anoath and of the significance of telling the truth (Decision, pp. 14 & 15).

3. The extra-judicial confession of appellant Remy Dio, executed on November 19, 1973, is challengedon the ground that the same was secured through force and intimidation. It narrated in detail how, whenthe victim passed by the rice paddies at about 1:00 o'clock P.M., more or less, of November 13, 1973,she was "immediately caught by Badong (Salvador Dequito) and he then kissed her;" that appellant


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himself took hold of her two arms; and thereafter the three of them (Salvador Dequito, Alex Dequito andhe) took turns in having carnal knowledge of the victim; that appellant did so only once; that the victimwas strangled by Salvador so that "she cannot inform the authorities;" and that only the three of them did"the raping and killing of Miss Melinda Boglosa."

While the evidence negates that the confession was extracted by force and intimidation, nevertheless,

having been obtained after the effectivity of the 1973 Constitution on January 17, 1973, it is inadmissiblein evidence, as the accused was not clearly and unequivocally informed of his constitutional rights toremain silent and to counsel, in violation of the prescribed safeguards in Section 20, Article IV of the 1973Constitution. 1 The confession was merely prefaced with the perfectory statement that "the one making asworn statement was informed of his right under our Constitution and the reason for this investigation,"without more.

Be that as it may, the testimony of the sole eyewitness, Roberto Dumancas, sufficiently establishes theguilt of appellant, which testimony is corroborated in its material aspects by the postmortem findings andthe testimony of the medico-legal officer in respect thereto.

4. No error was committed by the lower Court in not giving credence to the testimony of KathleenHustace, a Peace Corps volunteer assigned in the barrio where the crime was committed. She testified

that at about the time the crime was perpetrated, she and Remy Dio were together feeding birds. Evengranting it to be so, that does not exclude the possibility that Remy Dio could have slipped out either before or after the feeding of the birds in order to commit the crime. Kathleen herself testified that she hadto leave around 1:00 P.M. of that fateful day in order to make an appointment.

To establish alibi, an accused must show that he was at some other place for such a period of time that i twas impossible for him to have been at the place where the crime was committed at the time of itscommission (People vs. Urgel, No. L-34861, February 25, 1985, 134 SCRA 483). In this case, the placewhere Kathleen Hustace and Remy Dio were feeding the birds was in the same barrio where the crimewas perpetrated.

5. The lower Court correctly rendered a verdict of guilty. The elements of rape that of having carnalknowledge of a woman by using force and depriving her of consciousness are indubitably present.

Eyewitness Roberto Dumancas testified that while he was herding his carabao, he saw the victimapproaching from a distance; suddenly Salvador Dequito pulled her down causing them both to fall to theground; appellant Remy Dio then held the hands of the victim while Jose Dequito held her two legs;thereafter Salvador Dequito took off his pants and underwear and had carnal knowledge of the victim;and that thereafter, Jose Dequito and Remy Dio took turns abusing her.

The elements of the crime of Homicide are likewise attendant namely, that a person is killed; that theaccused are the authors of the killing without justifiable reason; and that the accused had the intention tokill, which is usually the case when death results because the law presumes that they had intended thematerial consequences of their unlawful act.

Citing again from the testimony of Roberto Dumancas, he declared that when the three accused werethrough abusing the victim, Salvador Dequito choked her, and with an engine cranker, struck her on thehead; subsequently, the trio dragged the victim and pushed her head into the rice paddy, which wasknee-deep with water. The medico-legal officer corroborated this testimony in his Necropsy Report wherehe disclosed that the victim had been abused and that she died as asphyxia by strangulation anddrowning. The fact that said officer found no wound on the forehead does not necessarily imply that thevictim was not so struck as a gaping wound need not necessarily have resulted.

Finally, the three penalties of reclusion perpetua were properly imposed. It is evident that conspiracyattended the perpetuation of the crime of Rape with Homicide by the three accused. By their contemporaneous acts it was evident that they were acting in concert and pursuing the same objectiveand design that of raping the victim and killing her. The act of one is the act of all and each of theconspirators must be held liable for each of the felonious acts committed in conspiracy (People vs.Beltran, Nos. L-37168- 69, September 13, 1985, 138 SCRA 521). The penalty should, in fact, be deathsince by reason or on the occasion of the rape, a homicide was committed (Article 335, Revised PenalCode), but with the abolition of the death penalty in the 1987 Constitution, the imposable penalty wouldbe reclusion perpetua just the same. So that, instead of three (3) death penalties, the accused Remy Dioshould suffer three (3) penalties of reclusion perpetua.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the heirsof the victim, Melinda Boglosa, is hereby increased to P20,000.00. With one-third (1/3) of the costsagainst accused-appellant, Remy Dio.


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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-33964 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG RODOLFODEL ROSARIO, and BAYANI ALCALA,petitioners,vs.BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.

G.R. No. L-33965 December 11, 1971

ROGELIO V. ARIENDA,petitioner,

vs.

SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY,respondents.

G.R. No. L-33973 December 11, 1971

LUZVIMINDA DAVID,petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C. CAMELLO,in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE in hiscapacity as Secretary, Department of National defense, respondents.

G.R. No. L-33982 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTEFELICIDAD G. PRUDENTE,petitioners,

vs.

GENERAL MANUEL YAN, GEN. EDU GARCIA,respondents.

G.R. No. L-34004 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO TOMAS,ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS ILLEGALLY SEIZED.DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal Assistance, PhilippineBar Association, petitioner,

vs.

BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY,respondent.

G.R. No. L-34013 December 11, 1971

REYNALDO RIMANDO,petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.

G.R. No. L-34039 December 11, 1971


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IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT. FILOMENO M.DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C. RABAGO, in hiscapacity as President of the Conference Delegates Association of the Philippines(CONDA),petitioner,

vs.

BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.

G.R. No. L-34265 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR. ANTOLINORETA, JR., petitioner,

vs.

GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.

G.R. No. L-34339 December 11, 1971GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,

vs.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al., respondents.

I gnacio P . Lacsina for petitioners Teodosio Lansang, et al.

Ramon A. Gonzales for petitioner Rogelio V. Arienda.

E. Voltaire Garcia II for petitioner Luzvimindo David.

Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R. G. Suntay and Juan T. David for petitioner Felicidad G. P rudente.

Ruben L. Roxas for petitioner Reynaldo Rimando.

N uez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.

E. Voltaire Garcia II and M. P . Vivo for petitioner Gary O livar, etc., et al.

Jose W. Dio k no and Juanito R. Remulla for petitioner Antolin O reta, Jr.

Domingo E. de Lara for and in his own behalf.

O ffice of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P . P ardo for respondents.

CONCEPCION, C .J.:

In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holdinga public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general electionsscheduled for November 8, 1971, two (2) hand grenades were thrown, one after the other, at the platformwhere said candidates and other persons were. As a consequence, eight (8) persons were killed andmany more injured, including practically all of the aforementioned candidates, some of whom sustainedextensive, as well as serious, injuries which could have been fatal had it not been for the timely medicalassistance given to them.

On August 23, soon after noontime, the President of the Philippines announced the issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:


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WHEREAS, on the basis of carefully evaluated information, it is definitely established thatlawless elements in the country, which are moved by common or similar ideologicalconviction, design and goal and enjoying the active moral and material support of aforeign power and being guided and directed by a well trained, determined and ruthlessgroup of men and taking advantage of our constitutional liberties to promote and attaintheir ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and waging anarmed insurrection and rebellion in order to forcibly seize political power in this country,overthrow the duly constituted government, and supplant our existing political social,economic and legal order with an entirely new one whose form of government, whosesystem of laws, whose conception of God and religion, whose notion of individual rightsand family relations, and whose political, social and economic precepts are based on theMarxist-Leninist-Maoist teachings and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations thatare seemingly innocent and harmless, have continuously and systematicallystrengthened and broadened their memberships through sustained and careful recruitingand enlistment of new adherents f rom among our peasantry, laborers, professionals,intellectuals, students, and mass media personnel, and through such sustained andcareful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social,economic and moral foundations of our existing government and to influence manypeasant, labor, professional, intellectual, student and mass media organizations tocommit acts of violence and depredations against our duly constituted authorities, againstthe members of our law enforcement agencies, and worst of all, against the peacefulmembers of our society;

WHEREAS, these lawless elements have created a state of lawlessness and disorder affecting public safety and the security of the State, the latest manifestation of which hasbeen the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, whichhas resulted in the death and serious injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authorityof the State;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtueof the powers vested upon me by Article VII, Section 10, Paragraph (2) of theConstitution, do hereby suspend the privilege of the writ of habeas corpus , for thepersons presently detained, as well as others who may be hereafter similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed bythem in furtherance or on the occasion thereof, or incident thereto, or in connectiontherewith.

Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following

persons, who, having been arrested without a warrant therefor and then detained, upon the authority of said proclamation, assail its validity, as well as that of their detention, namely:

1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case No. L-33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m., were "invited"by agents of the Philippine Constabulary which is under the command of respondent Brig. Gen.Eduardo M. Garcia to go and did go to the headquarters of the Philippine Constabulary, at CampCrame, Quezon City, for interrogation, and thereafter, detained;

2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971 whowas picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of theMetrocom and then detained;

3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same wasamended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart fromstating that these additional petitioners are temporarily residing with the original petitioner, Rogelio V.

Arienda, the amended petition alleged nothing whatsoever as regards the circumstances under whichsaid Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;

4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was similarlyarrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the Constabulary;


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5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon theground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m., beenapprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and thendetained at the Camp Crame stockade, Quezon City;

6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the

petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of theConstabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don ManuelStreet, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where he is detainedand restrained of liberty;

7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3)cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at Sta.Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the Constabularyheadquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where he is detained andrestrained of liberty;

8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same three (3)cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on August 22, 1971,

between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas,San Fernando, Pampanga, and eventually to Camp Crame, Quezon City, where he is restrained anddeprived of liberty;

9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. LouisUniversity, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman, Committeeon Legal Assistance, Philippine Bar Association filed on September 3, 1971, the petition in Case No. L-34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., beenarrested by Constabulary agents, while on his way to school in the City of Baguio, then brought to theConstabulary premises therein at Camp Holmes, and, thereafter, taken, on August 24, 1971, to CampOlivas, Pampanga, and thence, on August 25, 1971, to the Constabulary headquarters at Camp Crame,Quezon City, where he is detained;

10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19-year old student of the U.P. College in Baguio city who, while allegedly on his way home, at Lukban Road,Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who brought him to theBurnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp Crame,Quezon City, where he is detained;

11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose behalf Carlos C. Rabago as President of the Conference Delegates Association of the Philippines (CONDA) filed the petition in Case No. L-34039 on September 14, 1971 against Gen. Eduardo M. Garcia,alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at LiamzonSubdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the PC headquarters atCamp Crame, where, later, that same afternoon, her husband was brought, also, by PC agents and bothare detained;

12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971 againstsaid Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the CentralIntelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said CIS, he went,on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of Staff of the

Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn,referred him to CIS Investigator Atty. Berlin Castillo and another CIS against, whose name is unknown tothe petitioner; and that, after being interrogated by the two (2), petitioner was detained illegally; and

13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who wasapprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City, andthen detained at Camp Crame, in the same City.

Upon the filing of the aforementioned cases, the respondents were forthwith required to answer thepetitions therein, which they did. The return and answer in L-33964 which was, mutatis mutandis ,reproduced substantially or by reference in the other cases, except L-34265 alleges, inter alia , that thepetitioners had been apprehended and detained "on reasonable belief" that they had "participated in thecrime of insurrection or rebellion;" that "their continued detention is justified due to the suspension of theprivilege of the writ of habeas corpus pursuant to Proclamation No. 889 of the President of thePhilippines;" that there is "a state of insurrection or rebellion" in this country, and that "public safety andthe security of the State required the suspension of the privilege of the writ of habeas corpus ," as


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"declared by the President of the Philippines in Proclamation No. 889; that in making said declaration, the"President of the Philippines acted on relevant facts gathered thru the coordinated efforts of the variousintelligence agents of our government but (of) which the Chief Executive could not at the moment give afull account and disclosure without risking revelation of highly classified state secrets vital to its safely andsecurity"; that the determination thus made by the President is "final and conclusive upon the court andupon all other persons" and "partake(s) of the nature of political question(s) which cannot be the subjectof judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v. Castaeda , 91 Phil. 882;that petitioners "are under detention pending investigation and evaluation of culpabilities on thereasonable belief" that they "have committed, and are still committing, individually or in conspiracy withothers, engaged in armed struggle, insurgency and other subversive activities for the overthrow of theGovernment; that petitioners cannot raise, in these proceedings for habeas corpus , "the question of their guilt or innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of theexistence of evidence sufficient to afford a reasonable ground to believe that petitioners come within thecoverage of persons to whom the privilege of the writ of habeas corpus has been suspended"; that the"continuing detention of the petitioners as an urgent bona fide precautionary and preventive measuredemanded by the necessities of public safety, public welfare and public interest"; that the President of thePhilippines has "undertaken concrete and abundant steps to insure that the constitutional rights andprivileges of the petitioners as well as of the other persons in current confinement pursuant toProclamation 889 remain unimpaired and unhampered"; and that "opportunities or occasions for abusesby peace officers in the implementation of the proclamation have been greatly minimized, if notcompletely curtailed, by various safeguards contained in directives issued by proper authority."

These safeguards are set forth in:

1. A letter of the President to the Secretary of National Defense, dated August 21, 1971, directing, inter alia , in connection with the arrest or detention of suspects pursuant to Proclamation No. 889, that, exceptwhen caught in flagrante delicto , no arrest shall be made without warrant authorized in writing by theSecretary of National Defense; that such authority shall not be granted unless, "on the basis of recordsand other evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an afflictive penalty under the Anti-Subversion Act,the authorization for his arrest shall not be issued unless supported by signed intelligence reports citing atleast one reliable witness to the same overt act; that no unnecessary or unreasonable force shall be usedin effecting arrests; and that arrested persons shall not be subject to greater restraint than is necessaryfor their detention;

2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units of hiscommand, stating that the privilege of the writ is suspended for no other persons than those specified inthe proclamation; that the same does not involve material law; that precautionary measures should betaken to forestall violence that may be precipitated by improper behavior of military personnel; thatauthority to cause arrest under the proclamation will be exercised only by the Metrocom, CMA, CIS, and"officers occupying position in the provinces down to provincial commanders"; that there shall be noindiscriminate or mass arrests; that arrested persons shall not be harmed and shall be accorded fair andhumane treatment; and that members of the detainee's immediate family shall be allowed to visit himtwice a week;

3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent and/or check any abuses in connection with the suspension of the privilege of the writ; and

4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative AssistanceCommittee to hear complaints regarding abuses committed in connection with the implementation of Proclamation No. 889.

Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang hadbeen released from custody on August 31, 1971, "after it had been found that the evidence against themwas insufficient."

In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact andconclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner therein,had been and is detained "on the basis of a reasonable ground to believe that he has committed overtacts in furtherance of rebellion or insurrection against the government" and, accordingly, "comes withinthe class of persons as to whom the privilege of the writ of habeas corpus has been suspended byProclamation No. 889, as amended," the validity of which is not contested by him.

On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889, soas to read as follows:


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WHEREAS, on the basis of carefully evaluated information, it is definitely established thatlawless elements in the country, which are moved by common or similar ideologicalconviction, design and goal and enjoying the active moral and material support of aforeign power and being guided and directed by a well-trained, determined and ruthlessgroup of men and taking advantage of our constitutional liberties to promote and attaintheir ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of [actually] staging, undertaking, [and] waggingand are actually engaged in an armed insurrection and rebellion in order to forcibly seizepolitical power in this country, overthrow the duly constituted government, and supplantour existing political, social, economic and legal order with an entirely new one whoseform of government, whose system of laws, whose conception of God and religion,whose notion of individual rights and family relations, and whose political, social andeconomic precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations thatare seemingly innocent and harmless, have continuously and systematicallystrengthened and broadened their memberships through sustained and careful recruitingand enlistment of new adherents f rom among our peasantly, laborers, professionals,intellectuals, students, and mass media personnel, and through such sustained andcareful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social,economic and moral foundations of our existing government and influence many peasant,labor, professional, intellectual, student and mass media organizations to commit acts of violence and depredations against our duly constituted authorities, against the membersof our law enforcement agencies, and worst of all, against the peaceful members of our society;

WHEREAS, these lawless elements, by their acts of rebellion and insurrection , havecreated a state of lawlessness and disorder affecting public safety and security of theState, the latest manifestation of which has been the dastardly attack on the Liberal Partyrally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons;

WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authorityof the State;

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtueof the powers vested upon me by Article VII, Section 10, Paragraph (2) of theConstitution, do hereby suspend the privilege of the writ of habeas corpus for the personspresently detained, as well as all others who may be hereafter similarly detained for thecrimes of insurrection or rebellion [,] and [all] other [crimes and offenses] overt actscommitted by them in furtherance [or on the occasion] thereof[,]. [or incident thereto, or inconnection therewith.] 1

On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and thenthe parties therein were allowed to file memoranda, which were submitted from September 3 toSeptember 9, 1971.

Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by ProclamationNo. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the following provinces,sub-provinces and cities of the Philippine, namely:

A. PROVINCES:

1. Batanes 15. Negros Occ.2. Ilocos Norte 16. Negros Or.3. Ilocos Sur 17. Cebu4. Abra 18. Bohol5. Abra 19. Capiz6. Pangasinan 20. Aklan7. Batangas 21. Antique8. Catanduanes 22. Iloilo9. Masbate 23. Leyte10. Romblon 24. Leyte del Sur 11. Marinduque 25. Northern Samar 12. Or. Mindoro 26. Eastern Samar


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13. Occ. Mindoro 27. Western Samar 14. Palawan.

B. SUB-PROVINCES:

1. Guimaras 3. Siquior

2. Biliran

C. CITIES:

1. Laog 10. Bacolod2. Dagupan 11. Bago3. San Carlos 12. Canlaon4. Batangas 13. La Carlota5. Lipa 14. Bais6. Puerto Princesa 15. Dumaguete7. San Carlos (Negros 16. IloiloOcc.) 17. Roxas8. Cadiz 18. Tagbilaran9. Silay 19. Lapu-lapu

20. Cebu 24. Tacloban21. Mandaue 25. Ormoc22. Danao 26. Calbayog23. Toledo

On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the writin the following provinces and cities:

A. PROVINCES:

1. Surigao del Norte 8. Agusan del Sur 2. Surigao del Sur 9. Misamis Or.3. Davao del Norte 10. Misamis Occ.4. Davao del Sur 11. Zamboanga del Norte5. Davao Oriental 12. Basilan6. Bukidnon 13. Pagadian7. Agusan del Norte

B. CITIES:

1. Surigao 8. Tangub2. Davao 9. Dapitan3. Butuan 10. Dipolog

4. Cagayan 11. Zamboanga5. Gingoong 12. Basilan6. Ozamiz 13. Pagadian.7. Oroquieta

On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in thefollowing places:

A. PROVINCES:

1. Cagayan 5. Camarines2. Cavite 6. Albay3. Mountain Province 7. Sorsogon

4. Kalinga-Apayao

B. CITIES:

1. Cavite City 3. Trece Martires2. Tagaytay 4. Legaspi


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As a consequences, the privilege of the writ of habeas corpus is still suspended in the following eighteen(18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:

A. PROVINCE:

1. Bataan 10. North Cotabato

2. Benguet 11. Nueva Ecija3. Bulacan 13. Pampanga4. Camarines Sur 14. Quezon5. Ifugao 15. Rizal6. Isabela 16. South Cotabato7. Laguna 17. Tarlac8. Lanao del Norte 18. Zambales9. Lanao del Norte

B. SUB-PROVINCES:

1. Aurora 2. Quirino

C. CITIES:

1. Angeles 10. Manila2. Baguio 11. Marawi3. Cabanatuan 12. Naga4. Caloocan 13. Olongapo5. Cotabato 14. Palayan6. General Santos 15. Pasay7. Iligan 16. Quezon8 Iriga 17. San Jose9 Lucena 18. San Pablo

The first major question that the Court had to consider was whether it would adhere to the view taken inBarcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda , 3 pursuant to which, "the authority todecide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeascorpus ) belongs to the President and his 'decision is final and conclusive' upon the courts and upon allother persons." Indeed, had said question been decided in the affirmative the main issue in all of thesecases, exceptL-34339, would have been settled, and, since the other issues were relatively of minor importance, saidcases could have been readily disposed of. Upon mature deliberation, a majority of the Members of theCourt had, however, reached, although tentatively, a consensus to the contrary, and decided that theCourt had authority to and should inquire into the existence of the factual bases required by theConstitution for the suspension of the privilege of the writ; but before proceeding to do so, the Courtdeemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their views thereof. Accordingly, on October 5, 1971, the Court issued,in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that

... a majority of the Court having tentatively arrived at a consensus that it may inquire inorder to satisfy itself of the existence of the factual bases for the issuance of PresidentialProclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeascorpus for all persons detained or to be detained for the crimes of rebellion or insurrectionthroughout the Philippines, which area has lately been reduced to some eighteenprovinces, two subprovinces and eighteen cities with the partial lifting of the suspensionof the privilege effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) andthus determine the constitutional sufficiency of such bases in the light of the requirementsof Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine Constitution;and considering that the members of the Court are not agreed on the precise scope andnature of the inquiry to be made in the premises, even as all of them are agreed that thePresidential findings are entitled to great respect, the Court RESOLVED that these casesbe set for rehearing on October 8, 1971 at 9:30 A.M.

xxx xxx xxx

On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with casesNos. L-34004, L-34013, and L-34039, and the parties were then granted a period to file memoranda, inamplification of their respective oral arguments, which memoranda were submitted from October 12 toOctober 21, 1971.


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Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971, their willingness to impart to the Court classified information relevant to these cases, subject to appropriatesecurity measures, the Court met at closed doors, on October 28 and 29, 1971, and, in the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, Gen.Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge AdvocateGeneral, JAGS (GSC), and other ranking officers of said Armed Forces, on said classified information,most of which was contained in reports and other documents already attached to the records. During theproceedings, the members of the Court, and, occassionally, counsel for the petitioners, propoundedpertinent questions to said officers of the Armed Forces. Both parties were then granted a period of timewithin which to submit their respective observations, which were filed on November 3, 1971, andcomplemented by some documents attached to the records on November 6, 1971, and a summary,submitted on November 15, 1971, of the aforesaid classified information.

In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties thereinwere heard in oral argument on November 4, and 16, 1971, respectively.

On November 15, 1971, the Solicitor General filed manifestations motions stating that on November

13, 1971, the following petitioners were:

(a) released from custody:

(1) Teodosio Lansang -- G.R. No. L-33964(2) Bayani Alcala -- " " L-33964(3) Rogelio Arienda -- " " L-33965(4) Nemesio Prudente -- " " L-33982(5) Gerardo Tomas -- " " L-34004(6) Reynaldo Rimando -- " " L-34013(7) Filomeno M. de Castro -- " " L-34039(8) Barcelisa de Castro -- " " L-34039(9) Antolin Oreta, Jr. -- " " L-34264.

(b) charged, together with other persons named in the criminal complaint filed therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:

(1) Angelo de los Reyes -- G.R. No. L-22982 * (2) Teresito Sison -- " " L-33982 *

(c) accused, together with many others named in the criminal complaint filed therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal:

(1) Rodolfo del Rosario -- G.R. No. L-33969 ** (2) Luzvimindo David -- " " L-33973(3) Victor Felipe -- " " L-33982 *

and continue under detention pursuant to Proclamation No. 889, as amended, and praying that thepetitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed, withoutprejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as above stated,with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q-1623 of said court which was appended to said manifestations-motions of the respondent as Annex 2 thereof showsthat Gary Olivar, the petitioner in L-34339, is one of the defendants in said case.

Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in hiscomment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of thesecases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended, upon theground that he is still detained and that the main issue is one of public interest involving as it does the civilliberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973,Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L-34004 have been filed, maintained that the issue in these cases is not moot, not even for the detaineeswho have been released, for, as long as the privilege of the writ remains suspended, they are in danger of being arrested and detained again without just cause or valid reason. In his reply, dated and filed onNovember 29, 1971, the Solicitor General insisted that the release of the above-named petitionersrendered their respective petitions moot and academic.

I


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Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the proclamationsuspending the privilege of the writ of habeas corpus . In this connection, it should be noted that, asoriginally formulated, Proclamation No. 889 was contested upon the ground that it did not comply with thepertinent constitutional provisions, namely, paragraph (14) of section 1, Article III of our Constitution,reading:

The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any way of whichevents the same may be suspended wherever during such period the necessity for suchsuspension shall exist.

and paragraph (2), section 10, Article VII of the same instrument, which provides that:

The President shall be commander-in-chief of all armed forces of the Philippines, andwhenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,insurrection, or rebellion, or imminent danger thereof when the public safety requires it,he may suspend the privileges of the writ of habeas corpus , or place the Philippines or any part thereof under martial law.

Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus incase of "imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated insaid paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14), section1 of its Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the existenceof actual "invasion insurrection or rebellion or imminent danger thereof," and that, consequently, saidProclamation was invalid. This contention was predicated upon the fact that, although the first "whereas"in Proclamation No. 889 stated that "lawless elements" had "entered into a conspiracy and have infact joined and banded their forces together for the avowed purpose of actually staging, undertaking andwaging an armed insurrection and rebellion," the actuality so alleged refers to the existence, not of anuprising that constitutes the essence of a rebellion or insurrection, but of the conspiracy and the intent torise in arms.

Whatever may be the merit of this claim, the same has been rendered moot and academic byProclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or on

August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia , the first "whereas" of theoriginal proclamation by postulating the said lawless elements "have entered into a conspiracy and havein fact joined and banded their forces together for the avowed purpose of staging, undertaking,waging and are actually engaged in an armed insurrection and rebellion in order to forcibly seize politicalpower in this country, overthrow the duly constituted government, and supplant our existing political,social, economic and legal order with an entirely new one ...." Moreover, the third "whereas" in the originalproclamation was, likewise, amended by alleging therein that said lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness and disorder affecting public safety andthe security of the State. In other words, apart from adverting to the existence of actual conspiracy and of the intent to rise in arms to overthrow the government, Proclamation No. 889-A asserts that the lawlesselements "are actually engaged in an armed insurrection and rebellion" to accomplish their purpose.

It may not be amiss to note, at this juncture, that the very tenor of the original proclamation andparticularly, the circumstances under which it had been issued, clearly suggest the intent to aver thatthere was and is, actually, a state of rebellion in the Philippines, although the language of saidproclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise inarms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments and thememoranda of respondents herein have consistently and abundantly emphasized to justify thesuspension of the privilege of the writ of habeas corpus the acts of violence and subversion committedprior to August 21, 1971, by the lawless elements above referred to, and the conditions obtaining at thetime of the issuance of the original proclamation. In short, We hold that Proclamation No. 889-A hassuperseded the original proclamation and that the flaws attributed thereto are purely formal in nature.

II

Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the above-quoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of the authorityto suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof," and (b)"public safety" must require the suspension of the privilege. The Presidential Proclamation under consideration declares that there has been and there is actually a state of rebellion andthat 4 "public safety requires that immediate and effective action be taken in order to maintain peace andorder, secure the safety of the people and preserve the authority of the State."


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Are these findings conclusive upon the Court? Respondents maintain that they are, upon the authority of Barcelon v. Baker 5 and Montenegro v. Castaeda . 6 Upon the other hand, petitioners press the negativeview and urge a reexamination of the position taken in said two (2) cases, as well as a reversal thereof.

The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied heavilyupon Martin v. Mott 7 involving the U.S. President's power to call out the militia , which he being the

commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawlessviolence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly,much broader than his authority to suspend the privilege of the writ of habeas corpus , jeopardizing as thelatter does individual liberty; and (b) the privilege had been suspended by the American Governor-General, whose act, as representative of the Sovereign , affecting the freedom of its subjects , can hardlybe equated with that of the President of the Philippines dealing with the freedom of the Filipino people, inwhom sovereignty resides , and from whom all government authority emanates . The pertinent ruling in theMontenegro case was based mainly upon the Barcelon case, and hence, cannot have more weight thanthe same. Moreover, in the Barcelon case, the Court held that it could go into the question: "Did theGovernor-General" acting under the authority vested in him by the Congress of the United States, tosuspend the privilege of the writ of habeas corpus under certain conditions "act in conformance withsuch authority?" In other words, it did determine whether or not the Chief Executive had acted inaccordance with law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failedto overcome the presumption of correctness which the judiciary accords to acts of the Executive ...." Inshort, the Court considered the question whether or not there really was are rebellion, as stated in theproclamation therein contested.

Incidentally, even the American jurisprudence is neither explicit nor clear on the point under consideration. Although some cases 8 purport to deny the judicial power to "review" the findings made inthe proclamations assailed in said cases, the tenor of the opinions therein given, considered as a whole,strongly suggests the court's conviction that the conditions essential for the validity of said proclamationsor orders were, in fact, present therein, just as the opposite view taken in other cases 9 had a backdroppermeated or characterized by the belief that said conditions were absent. Hence, the dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own circumstances." 10 One of theimportant, if not dominant, factors, in connection therewith, was intimated in Sterling v. Constantin, 11 inwhich the Supreme Court of the United States, speaking through Chief Justice Hughes, declared that:

.... When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with thetransgression. To such a case the Federal judicial power extends(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to itsexercise . .... 12

In our resolution of October 5, 1971, We stated that "a majority of the Court" had " tentatively arrived at aconsensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuanceof Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court are now unanimous inthe conviction that it has the authority to inquire into the existence of said factual bases in order todetermine the constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authorityconferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limitedand conditional. The precept in the Bill of Rights establishes a general rule, as well as an exceptionthereto. What is more, it postulates the former in the negative , evidently to stress its importance, byproviding that "(t)he privilege of the writ of habeas corpus shall not be suspended ...." It is only by wayof exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger thereof" "when the public safety requires it, inany of which events the same may be suspended wherever during such period the necessity for suchsuspension shall exist." 13 For from being full and plenary, the authority to suspend the privilege of the writis thus circumscribed, confined and restricted, not only by the prescribed setting or the conditionsessential to its existence, but, also, as regards the time when and the place where it may be exercised.These factors and the aforementioned setting or conditions mark, establish and define the extent, theconfines and the limits of said power, beyond which it does not exist. And, like the limitations andrestrictions imposed by the Fundamental Law upon the legislative department, adherence thereto andcompliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, theexplicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitutioncould not have intended to engage in such a wasteful exercise in futility.


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Much less may the assumption be indulged in when we bear in mind that our political system isessentially democratic and republican in character and that the suspension of the privilege affects themost fundamental element of that system, namely, individual freedom. Indeed, such freedom includesand connotes, as well as demands, the right of every single member of our citizenry to freely discuss anddissent from, as well as criticize and denounce, the views, the policies and the practices of thegovernment and the party in power that he deems unwise, improper or inimical to the commonwealth,regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment andexercise of such right which, under certain conditions, may be a civic duty of the highest order isvital to the democratic system and essential to its successful operation and wholesome growth anddevelopment.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed andexercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of thesocial order established by the Constitution and the context of the Rule of Law. Accordingly, whenindividual freedom is used to destroy that social order, by means of force and violence , in defiance of theRule of Law such as by rising publicly and taking arms against the government to overthrow the same,thereby committing the crime of rebellion there emerges a circumstance that may warrant a limitedwithdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writof habeas corpus , when public safety requires it. Although we must be forewarned against mistakingmere dissent no matter how emphatic or intemperate it may be for dissidence amounting torebellion or insurrection, the Court cannot hesitate, much less refuse when the existence of suchrebellion or insurrection has been fairly established or cannot reasonably be denied to uphold thefinding of the Executive thereon, without, in effect, encroaching upon a power vested in him by theSupreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violatingthe Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.

As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be "invasion,insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. ThePresident declared in Proclamation No. 889, as amended, that both conditions are present.

As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities in the

Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally atincitement to sedition or rebellion, as the immediate objective. Upon the establishment of theCommonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequentliberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as tobe able to organize and operate in Central Luzon an army called HUKBALAHAP, during theoccupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation which clashedseveral times with the armed forces of the Republic. This prompted then President Quirino to issueProclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpus , thevalidity of which was upheld in Montenegro v. Castaeda . 15 Days before the promulgation of saidProclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines wereapprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their respective sentences. 16

The fifties saw a comparative lull in Communist activities, insofar as peace and order were concerned.Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act, was approved,upon the ground stated in the very preamble of said statute that.

... the Communist Party of the Philippines, although purportedly a political party, is in factan organized conspiracy to overthrow the Government of the Republic of the Philippines,not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to aliendomination and control;

... the continued existence and activities of the Communist Party of the Philippines

constitutes a clear, present and grave danger to the security of the Philippines;17

and... in the face of the organized, systematic and persistent subversion, national in scopebut international in direction, posed by the Communist Party of the Philippines and itsactivities, there is urgent need for special legislation to cope with this continuing menaceto the freedom and security of the country....

In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad HocCommittee of Seven copy of which Report was filed in these cases by the petitioners herein


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The years following 1963 saw the successive emergence in the country of several massorganizations, notably the Lapiang Manggagawa (now the Socialist Party of thePhilippines) among the workers; the Malayang Samahan ng mga Magsasaka (MASAKA)among the peasantry; the Kabataang Makabayan (KM) among the youth/students; andthe Movement for the Advancement of Nationalism (MAN) among theintellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence andutilize these organizations in promoting its radical brand of nationalism. 18

Meanwhile, the Communist leaders in the Philippines had been split into

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