[A.M. No. RTJ-97-1387. September 10, 1997]

FLAVIANO B. CORTES, complainant, vs. JUDGE SEGUNDO B. CATRAL, Regional Trial Court, Branch 7, Aparri, Cagayan, respondent.

R E S O L U T I O N

ROMERO, J.:

Once again, the Court is asked to elucidate on the rules in the grant of the application for bail.

A sworn letter complaint was filed by Flaviano Cortes charging Judge Segundo B. Catral of the RTC of Aparri, Cagayan with Gross Ignorance of the Law committed as follows:

―1. He granted bail in murder cases without hearing: People v. Duerme, et al.,

Criminal Case No. 07-893 for murder and People v. Rodrigo Bumanglag, Criminal

Case No. 08-866 for murder

These two cases are like the case of Teresita Q. Tucay v. Judge Roger Domagas, 242

SCRA 110 being classified as heinous crimes there (sic) are supposedly unbailable;

2. On May 3, 1995, Barangay Captain Rodolfo Castaneda‘s Criminal Case No. 11-

6250 for Illegal Possession of Firearm was raffled and assigned to his sala. The

provincial prosecutor granted a bailbond of P180,000.00 but it was reduced by Judge

Segundo Catral for only P30,000.00. The worst part of it – no hearing has been made

from 1995 to the present because according to his clerks, he is holding it in

abeyance. This Barangay Captain Rodolfo Castaneda is one of the goons of Julio

‗Bong‘ Decierto his nephew who has a pending murder case;

3. Another Barangay Captain Nilo de Rivera with a homicide case was granted with a

bailbond of P14,800.00 by Judge Segundo Catral. The amount is too low. It is

because this Nilo de Rivera is another goon of Julio Bong Decierto;

4. Jimmy Siriban the right hand man of Julio ‗Bong‘ Dicierto was sued for

concubinage and convicted by Judge Herminio del Castillo in MTC. Jimmy Siriban

appealed and it was elevated to the RTC Branch 08, the sala of Judge Segundo

Catral. Judge Segundo Catral acquitted Jimmy Siriban, rumors in Aparri spread that

the wife of Judge Segundo Catral went to Jimmy Siriban‘s house to get the envelop;‖[1]

In his comment dated August 16, 1996, respondent judge branded the complainant as a “self anointed concern (sic) citizen” of Aparri, Cagayan who has gained notoriety as a character assassinator, a public nuisance and most often called speaker for hire during election time. Respondent further laments that “a „ghost lawyer‟ is taking advantage of the notoriety of Mr. Flaviano Cortes by manipulating him like a robot and letting him loose like a mad dog barking on the wrong tree and biting everybody including the other members of the bench.”[2]

With regard to the first charge, respondent judge, in his comment, clarified that Criminal Case No. 07-893 is the case of People v. Willie Bumanglag y Magno for frustrated homicide pending in Branch 7 of the Regional Trial Court of Aparri where the presiding judge is Hon. Virgilio Alameda. However, if the complainant is referring to Ahmed Duerme y Paypon, et al., Criminal Case No. 874[3] for murder pending in Branch 7 of the RTC where respondent was then designated as presiding judge, respondent stresses that the provincial prosecutor recommended P 200,000.00 as bailbond for each of the accused. Subsequently, in a motion for reduction of bailbond, the resolution of the motion was submitted to the sound discretion of the court. The court, “mindful of the fact that the prosecution is banking on weak circumstantial evidence and guided by the factors prescribed in Section 9 of Administrative Circular 12-94[4] issued an order for reduction of the bailbond from P200,000.00 to P50,000.00.”[5]

In the case of People v. Rodrigo Bumanglag, Criminal Case 08-866 for murder, the inquest judge issued a warrant of arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court upon information filed by the provincial prosecutor, the information made no mention of a bailbond. In the hearing of the petition to determine whether or not the evidence of guilt is strong, the fiscal opted not to introduce evidence and recommended bail in the sum of P200,000.00 instead. Respondent judge “acting on the said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on the record approved the recommendation of Prosecutor Apolinar Carrao.” [6] A duplicate copy of trial prosecutor Apolinar Carrao‟s letter dated September 3, 1996 addressed to the provincial prosecutor Romeo Sacquing was presented by the respondent to disprove the accusation that he granted bail to the accused without conducting any hearing.[7]

As regards the third charge concerning the illegal possession of firearm against Barangay Captain Rodolfo Castaneda, the bailbond recommended by the prosecutor was P180,000.00. Accused, through counsel Atty. Bulseco, filed a motion for reduction of the bailbond to P30,000.00. Counsel even vouched and guaranteed the appearance of the accused in court, whenever required. The motion for reduction of bailbond was submitted without serious opposition and the prosecutor “mindful perhaps that there is no corpus of the crime as no firearm was caught or taken from the possession of the accused merely submitted the same to the discretion of the court.”[8]

In Criminal Case No. 08-915 concerning a homicide case against Barangay Captain Nilo de Rivero, respondent judge says that the bailbond of P14,800.00 was recommended by the acting Officer-In-Charge (OIC) as contained in his manifestation accompanying the information.[9] Respondent judge then “acting on the recommendation of the OIC provincial prosecutor and mindful of the guidelines in fixing a reasonable amount of bailbond coupled by the fact that the evidence on record is merely circumstantial and there was no eyewitness to the commission of crime granted bailbond in the sum ofP14,800.00.”[10]

Finally, respondent judge says the accusation regarding the acquittal of one Jimmy Siriban is simply the product of a dirty imagination and is a dirty trick intended to defame the name of his family by rumor mongers who are unwilling to come out in the open to substantiate their accusation.

On September 9, 1996, respondent submitted his additional comment dated September 5, 1996 informing the Office of the Court Administrator that Criminal Case No. 07-784, referred to in the letter complainant (sic) of Mr. Flaviano Cortes, has already been dismissed by Judge Virgilio Alameda, RTC, Branch 07, Aparri Cagayan, in his order dated August 16, 1996. [11] Respondent judge stresses that, as can be gleaned from the penultimate paragraph of said order, the accused, despite reduction of their bailbonds, remained detention prisoners because of their failure to post bond. In his original comment, respondent stated, among others, that the evidence against the accused in Criminal Case No. 07-874 was based on weak circumstantial evidence which prompted the court to grant them a reduced bailbond of P50,000.00. Respondent judge noted that the complaining witnesses never appeared despite the fact that the case had been set for hearing several times.

The Office of the Court Administrator recommended the dismissal of the complaint saying that there is nothing in the allegations of the complainant

that would warrant the imposition of administrative sanction against respondent judge.

In recommending the dismissal of the complaint against respondent judge, the Office of the Court Administrator noted, “x x x complainant failed to show any indication that bad faith motivated the actuation of the respondent in granting and reducing the amount of bail of the accused in some of the criminal cases that were assigned in his sala. x x x it is crystal clear that the increase or reduction of bail rests in the sound discretion of the court depending upon the particular circumstances of the case. It should be noted further that the reduction in the amount of bail of the accused in the criminal cases in question were all done by the respondent with the knowledge and conformity of the Public Prosecutor concerned. Moreover, the actions taken by the respondent were in the exercise of judicial discretion that may not be assailed in an administrative proceedings (sic).”[12]

We do not agree.

Bail is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction.[13]

Bail should be fixed according to the circumstances of each case. The amount fixed should be sufficient to ensure the presence of the accused at the trial yet reasonable enough to comply with the constitutional provision that bail should not be excessive. [14] Therefore, whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant‟s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice.[15]

When a person is charged with an offense punishable by death, reclusion perpetua or life imprisonment, bail is a matter of discretion. Rule 114, Section 7 of the Rules of Court states: “No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action.” Consequently, when the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment, the judge is mandated to conduct a hearing, whether summary or otherwise in the discretion of the court, not only to take into account the guidelines set forth in

Section 9, Rule 114 of the Rules of Court, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused.

“A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered or admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination.”[16]

Respondent judge, in two instances, granted bail to an accused charged with murder, without having conducted any hearing as to whether the evidence of guilt against the accused is strong.

In the case of People v. Ahmed Duerme y Paypon, et al., Criminal Case No. 874, accused Ahmed Duerme together with four other persons were charged with the crime of murder. The provincial prosecutor recommended the sum of P200,000.00 as bailbond for each accused.[17] The records do not reveal whether a hearing was actually conducted on the application for bail although respondent judge implies that there was one, stating that “acting on this recommendation of the provincial prosecutor and taking into account the guidelines prescribed in Section 9 of Administrative Circular 12-94, the court issued a warrant of arrest and fixed the amount of P200,000.00 for the provisional liberty of each of the accused.”[18] Subsequently, counsel for accused Ahmed Duerme filed a motion for reduction of bail. The “hearing” of the motion was conducted on August 21, 1995 with the prosecution, not having interposed any opposition, and submitting the resolution of the motion to the sound discretion of the court instead. Respondent judge then issued an order granting a reduced bailbond of P50,000.00 for accused Ahmed Duerme inasmuch as “the evidence was not so strong to warrant the fixation of said amount.”[19] Respondent judge, in his comment, disclosed that the prosecution was banking on weak circumstantial evidence since there was no eyewitness to the commission of the offense as borne out from the affidavits and sworn statements of the prosecution witnesses.[20] The order granting the reduced bailbond, however, did not contain a summary of the evidence for the prosecution.[21]

In the case of People v. Rodrigo Bumanglag, Criminal Case No. 08-866, accused Bumanglag was charge with murder in a criminal complaint filed before the Municipal Trial Court of Sta. Ana, Cagayan. After conducting a preliminary investigation, the inquest judge issued a warrant of the arrest for the accused with no bail recommended. When the case was elevated to the Regional Trial Court, the information made no mention of a bailbond. Consequently, accused through counsel filed a petition for bail. In the hearing of the petition to determine whether or not the evidence of guilt against the accused was strong, the fiscal opted not to introduce evidence and recommended the sum of P200,000.00 instead.[22] Respondent judge, “acting on said recommendation and again guided by the provision of Section 9, Administrative Circular 12-94 in conjunction with the evidence extant on record,” issued an order granting bail to the accused in the sum of P200,000.00.[23] Unable to post the said bond, accused through counsel filed a motion to reduce bail.[24] In the course of the hearing of the petition, the public prosecutor manifested that he had no objection to the sum of P50,000.00 as bail for the accused. Respondent judge, then “guided by the factual setting and the supporting evidence extant on record”[25] reduced the bail bond from P200,000.00 to P50,000.00 as recommended by the prosecutor. Once again, the order granting the bail of P200,000.00, as well as the reduced bail bond of P50,000.00, did not contain a summary of the evidence presented by the prosecution.

Respondent judge insists that in the aforecited cases, a hearing was actually conducted on the application and motion for reduction of bail, but the public prosecutor opted not to introduce evidence and submitted the resolution of the petition, as well as the motion for reduction of bail, to the sound discretion of the court instead. Respondent observed that since it is a basic principle of procedure that the prosecution of criminal cases is under the direct control and supervision of the fiscal or prosecutor, would it be procedurally proper for the court to compel prosecutor Apolinar Carrao, the public prosecutor assigned in the case of People v. Rodrigo Bumanlag, Criminal Case No. 08-866, to prove the evidence of guilt of the accused for the crime of murder when the prosecutor candidly admitted in open court that in his honest view, the strength of evidence on hand for the state can only prove the crime of homicide and not murder?[26]

In the recent case of Inocencio Basco v. Judge Leo M. Rapatalo,[27] this court ruled that “x x x the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application of bail to the sound discretion of the court. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the

application to grant and fix bail. The importance of a hearing has been emphasized in not a few cases wherein the court ruled that, even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it against the accused.”

The reason for this is plain. Inasmuch as the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, It may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court,[28] it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce evidence in his own rebuttal.[29]

Respondent judge justifies the grant of bail in the two cases by stating that the prosecutor recommended the grant of bail. Respondent also added that in the case of People v. Ahmed Duerme, there were no eyewitnesses to the commission of the offense as borne out from the affidavits and sworn statements of the witnesses.[30] As a matter of fact, the case had already been dismissed for failure to prosecute by Judge Alameda inasmuch as the prosecutor himself admitted that there was lack of interest on the part of the witnesses to pursue the case and not a single witness ever went to court to see him.[31]

The fact that Criminal Case No. 07-874 was subsequently dismissed by Judge Alameda does not completely exculpate respondent judge. We need only remind him that he is not bound by the recommendation of the prosecutor and the affidavits and sworn statements of the witnesses are mere hearsay statements which could hardly be the basis for determining whether or not the evidence of guilt against the accused is strong.

Worth noting, too, is the fact that the order granting the application, as well as the reduction for bail the aforecited cases, did not contain a summary of the evidence presented by the prosecution. In Criminal Case No. 07-874, respondent only arrived at the conclusion that "the evidence was not so strong to warrant the fixation of said amount”[32] and the observation that: “When the hearing of this petition was called, some legal skirmishes arose between the Prosecutor and the Defense Counsel, after which, the prosecutor out of humanitarian reason yielded and manifested that he is amenable that the accused be admitted to bail in the amount of P200,000.00” in Criminal Case

No. 08-866.[33] Well settled in a number of cases[34] is the rule that the court‟s order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judge‟s evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense.

The procedural lapse of respondent judge is aggravated by the fact that even though the accused in Criminal Case No. 07-874, People v. Ahmed Duerme, have yet to be arrested, respondent already fixed bail in the sum of P200,000.00. Respondent evidently knew that the accused were still at large as he even had to direct their arrest in the same order where he simultaneously granted them bail.[35] At this juncture, there is a need to reiterate the basic principle that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty[36] and it would be premature, not to say incongruous, to file a petition for bail for some whose freedom has yet to be curtailed.

With regard to the third charge filed against respondent judge, we adopt the findings of the Office of the Court Administrator that the complainant failed to show that bad faith motivated the actuation of respondent judge in reducing the amount of bail in Criminal Case No. 11250 for Illegal Possession of Firearm against Barangay Captain Rodolfo Castaneda. Respondent judge, in granting and subsequently reducing the recommended bailbond of P180,000.00 considered the fact that there was no corpus of the crime as no firearm was taken from the possession of the accused, as well as the fact that counsel for the accused vouched and guaranteed the appearance of the accused in court whenever required.[37] Moreover, records show that, contrary to the allegations of the complainant, the trial of the case had already been set for hearing but on more than one occasion, the defense counsel, as well as the prosecutor, both moved to have it reset.[38]

In Criminal Case No. 08-915 for homicide filed against accused Nilo de Rivera, complainant alleges that the amount of P14,800.00 granted by respondent as bailbond of the accused is too low. Respondent judge stresses that the amount was recommended by the prosecutor and not motu propio by the trial court. Respondent added that the amount of bail was appropriate inasmuch as it was fixed in accordance with the guidelines set forth in Section 9 of Administrative Circular 12-94. As long as in fixing the amount of bail, the court is guided by the purpose for which bail is required, that is, to secure the appearance of the accused to answer charges brought against him, the decision of the court to grant bail in the sum it deems appropriate will not be interfered with.

With respect to the last charge, we adopt the findings of the office of the Court Administrator that there is nothing in the record to substantiate the allegation of the complainant that the acquittal of a certain Jimmy Siriban by respondent judge was tainted with irregularity. Other than his bare allegation, complainant has yet to present evidence as to any irregularity committed by respondent judge in acquitting Mr. Siriban.

In sum, we find respondent Judge Segundo B. Catral guilty of gross ignorance of the law for having granted bail to the accused in Criminal Cases No. 07-874 and 08-866 without having conducted the requisite hearing. It is indeed surprising, not to say, alarming, that the Court should be besieged with a number of administrative cases filed against erring judges involving bail. After all, there is no dearth of jurisprudence on the basic principles involving bail. As a matter of fact, the Court itself, through its Philippine Judicial Academy, has been including lectures on the subject in the regular seminars conducted for judges. Be that as it may, we reiterate the following duties of the trial judge in case an application for bail is filed:

―1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor

of the hearing of the application for bail or require him to submit his recommendation

(Section 18, Rule 114 of the Rules of Court as amended);

2. Where bail is a matter of discretion, conduct a hearing of the application for bail

regardless of whether or not the prosecution refuses to present evidence to show that

the guilt of the accused is strong for the purpose of enabling the court to exercise its

sound discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the summary of

evidence of the prosecution;

4. If the guilt of the accused is not strong, discharge the accused upon the approval of

the bailbond (Section 19, supra) Otherwise petition should be denied.‖[39]

With such succinct but clear rules now incorporated in the Rules of Court, trial judges are enjoined to study them as well and be guided accordingly. Admittedly, judges cannot be held to account for an erroneous decision rendered in good faith, but this defense is much too frequently cited even if not applicable. A number of cases on bail having already been decided, this Court justifiably expects judges to discharge their duties assiduously. For judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. Faith in the administration of justice

can only be engendered if litigants are convinced that the members of the Bench cannot justly be charge with a deficiency in their grasp of legal principles.

WHEREFORE, in view of the foregoing, respondent Judge Segundo B. Catral is hereby ORDERED to pay a fine P20,000.00 with the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely.

SO ORDERED.

MAGNO V ABBAS

G.R. No. L-19361 February 26, 1965

PEPITO MAGNO, petitioner, vs. HON. MACAPANTON ABBAS and THE PROVINCIAL FISCAL OF DAVAO, respondents.

Tomas Trinidad and Aportadera and Palabrica for petitioner. Assistant Provincial Fiscal Leo D. Medialdes for respondents.

DIZON, J.:

In Criminal Case No. 285-A filed with the Municipal Court of the City of Davao against Francisco Nuñez and others, for Robbery with Rape, petitioner Pepito Magno was arrested by virtue of a warrant of arrest issued by said court. After proper proceedings, said court forwarded the case to the Court of First Instance of Davao where it was docketed as Criminal Case No. 7155. Prior to the filing of the information in the latter court, petitioner filed a motion for bail, but the same was denied by the respondent judge on the ground that it was filed prematurely.

A second motion for bail was filed subsequently by petitioner, and after a hearing held thereon, the respondent judge issued a order on November 24, 1961 granting the motion and fixing the bail bond in the sum of P40,000.00. In the afternoon of the same date, however, the fiscal moved for a reconsideration of the order, claiming that he had just received sufficient evidence to prove the guilt of petitioner. The Court stayed the effectivity of the order granting bail and, after a hearing on the motion for reconsideration, the order was finally set aside and another was issued denying the motion for bail. Petitioner's motion for reconsideration of this last order having been denied, he filed the present special civil action of certiorari, claiming that, in denying his motion for bail, the respondent judge committed a grave abuse of discretion.

In the order of the respondent judge complained of, His Honor states the following:

The hearing of an application for bail is summary in nature. On such hearing, the Court "does not seek to try the merits or to enter into any nice inquiry as to the weight that would be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. (8 C.J.S. 93, 94)." (Padilla, Criminal Procedure 1955 ed. p. 270 citing Ocampo vs. Bernabe et al., 77 Phil. 55). It has also been held that "to sustain a refusal of bail in a capital case it is enough that evidence induces the belief that the accused have committed the offenses." (Ex-parte Page 255, p. 887, 82 Cal. App. 576). According to the law as interpreted by the courts like the case cited above it appears that in an application for bail the Court does not go into the merits of the case. Therefore, inconsistency or contradiction in the testimony of a witness for the prosecution is not sufficient in itself to entitle the accused to bail. It is enough, for the denial of bail, that the proof of guilt is evident or thepresumption great. It is sufficient that the evidence presented by the prosecution induces the belief that the accused had committed the offense.

Guided by the above ruling the Court is of the opinion that the accused shall be denied bail. He is accused of a capital offense. The evidence presented during the hearing of the petition for bail, without passing upon the merits of the evidence, shows that the accused Pepito Magno has participated in the commission of the offense of which he is charged

with other persons. The least that can be said about the evidence on record, without passing on the merits, is that the proof of guilt of the accused is presumptively strong. 1äwphï1.ñët

It is petitioner's contention that, while under the Constitution and the Rules of Court, a person charged with a capital offense may be denied bail, before conviction, only if the evidence of guilt against him is strong, the respondent judge denied him bail only on the strength of a strong presumption of guilt, thereby committing a grave abuse of discretion.

Petitioner's contention is without merit.

A reading of the order complained of clearly shows that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed "that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons." Casting aside other unnecessary pronouncements made in the order complained of, we believe that what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and justified denial of his motion for bail. At this stage of the proceeding, there is nothing before us, sufficient to justify the conclusion that His Honor erred or abused his discretion in so holding.

PREMISES CONSIDERED, the petition under consideration is dismissed and the writ prayed for denied, with costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala, Makalintal, Bengzon J.P., and Zaldivar, JJ., concur.

BASCO V RAPATALO

[A.M. No. RTJ-96-1335. March 5, 1997]

INOCENCIO BASCO, complainant, vs. JUDGE LEO H. RAPATALO, Regional Trial Court, Branch 32, Agoo, La Union, respondent.

R E S O L U T I O N

ROMERO, J.:

In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance or willful disregard of established rule of law for granting bail to an accused in a murder case (Criminal Case No. 2927) without receiving evidence and conducting a hearing.

Complainant, who is the father of the victim, alleged that an information for murder was filed against a certain Roger Morente, one of three accused. The accused Morente filed a petition for bail. The hearing for said petition was set for May 31, 1995 by petitioner but was not heard since the respondent Judge was then on leave. It was reset to June 8, 1995 but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did

not materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was not heard on said date as the prosecution's witnesses in connection with said petition were not notified. Another attempt was made to reset the hearing to July 17, 1995.

In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995. He later learned that the accused was out on bail despite the fact that the petition had not been heard at all. Upon investigation, complainant discovered that bail had been granted and a release order dated June 29, 1995[1] was issued on the basis of a marginal note[2] dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva which stated: "No objection: P80,000.00," signed and approved by the assistant prosecutor and eventually by respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis of the marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of the petition for bail was aborted and instead arraignment took place) when another hearing was scheduled for July 17, 1995.

In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition based on the prosecutor's option not to oppose the petition as well as the latter's recommendation setting the bailbond in the amount of P80,000.00. He averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on whether to approve it or not. He further declared that when he approved the petition, he had a right to presume that the prosecutor knew what he was doing since he was more familiar with the case, having conducted the preliminary investigation. Furthermore, the private prosecutor was not around at the time the public prosecutor recommended bail.

Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and a warrant for his arrest was issued on account of complainant's motion for reconsideration. The Assistant Provincial Prosecutor apparently conformed to and approved the motion for reconsideration.[3] To date, accused is confined at the La Union Provincial Jail.

A better understanding of bail as an aspect of criminal procedure entails appreciating its nature and purposes. "Bail" is the security required by the court and given by the accused to ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her. In theory, the only function of bail is to ensure the appearance of the defendant at the time set for trial. The sole purpose of confining the accused in jail before conviction, it has been observed, is to assure his presence at the trial.[4] In other words, if the denial of bail is

authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the court. Hence the exception to the fundamental right to be bailed should be applied in direct ratio to the extent of probability of evasion of the prosecution.[5] In practice, bail has also been used to prevent the release of an accused who might otherwise be dangerous to society or whom the judges might not want to release."[6]

It is in view of the abovementioned practical function of bail that it is not a matter of right in cases where the person is charged with a capital offense punishable by death, reclusion perpetua or life imprisonment. Article 114, section 7 of the Rules of Court, as amended, states, "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action."

When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court,[7] it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal."[8]

To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judge's individual opinion and the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular."[9]

Consequently, in the application for bail of a person charged with a capital offense cpunishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must

actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination."[10] If a party is denied the opportunity to be heard, there would be a violation of procedural due process.

That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the following cases:

(1) People v. Sola decided in 1981.[11] In this case seven separate information for

murder were filed against the accused Sola and 18 other persons. After preliminary

investigation, the municipal trial court issued warrants for their arrest. However

without giving the prosecution the opportunity to prove that the evidence of guilt

against the accused is strong. the court granted them the right to post bail for their

temporary release. Citing People v. San Diego,[12] we held: "We are of the considered

opinion that whether the motion for bail of a defendant who is in custody for a capital

offense be resolved in a summary proceeding or in the course of a regular trial, the

prosecution must be given an opportunity to present, within a reasonable time, all the

evidence that it may desire to introduce before the court should resolve the motion for

bail. If, as in the criminal case involved in the instant special civil action, the

prosecution should be denied such an opportunity, there would be a violation of

procedural due process, and the order of the court granting bail should be considered

void on that ground."

(2) People v. Dacudao decided in 1989.[13] In this case, an information was filed

against the accused for murder, a non-bailable offense. The judge, without conducting

any hearing, granted bail on the ground that there was not enough evidence to warrant

a case for murder because only affidavits of the prosecution witnesses who were

allegedly not eyewitnesses to the crime were filed. We held: "Whatever the court

possessed at the time it issued the questioned ruling was intended only for prima facie

determining whether or not there is sufficient ground to engender a well founded

belief that the crime was committed and pinpointing the persons who probably

committed it. Whether or not the evidence of guilt is strong for each individual

accused still has to established unless the prosecution submits the issue on whatever it

has already presented. To appreciate the strength or weakness of the evidence of guilt,

the prosecution must be consulted or held. It is equally entitled to due process."

(3) People v. Calo decided in 1990.[14] In this case, the prosecution was scheduled to

present nine witnesses at the hearings held to determine whether the evidence against

the private respondents was strong. After hearing the fifth witness, the respondent

judge insisted on terminating the proceedings. We held: "The prosecution in the

instant case was not given adequate opportunity to prove that there is strong evidence

of guilt and to present within a reasonable time all the evidence it desired to present."

(4) Libarios v. Dabalo decided in 1991[15] which involved an administrative

complaint against the respondent judge for ignorance of the law and grave abuse of

discretion. In this case, the respondent judge, without conducting any prior hearing,

directed the issuance of a warrant of arrest against the accused charged with murder,

fixing at the same time the bail at P50,000.00 each on the ground that the evidence

against them was merely circumstantial. We held: "Where a person is accused of a

capital offense, the trial court must conduct a hearing in a summary proceeding to

allow the prosecution to present, within a reasonable time, all evidence it may desire

to produce to prove that the evidence of guilt against the accused is strong before

resolving the issue of bail for the temporary release of the accused. Failure to conduct

a hearing before fixing bail in the instant case amounted to a violation of due

process." The respondent judge was ordered to pay a fine of P20,000.00 and warned

to exercise more care in the performance of his duties.

(5) People v. Nano decided in 1992.[16] In this case. the judge issued an order

admitting the accused in a kidnapping and murder case to bail without any hearing.

We held: "The prosecution must first be given an opportunity to present evidence

because by the very nature of deciding applications for bail, it is on the basis of such

evidence that judicial discretion is weighed against in determining whether the guilt of

the accused is strong."

(6) Pico v. Combong, Jr. decided in 1992.[17] In this administrative case, the

respondent judge granted bail to an accused charged with an offense punishable

by reclusion perpetua, without notice and hearing and even before the accused had

been arrested or detained. We held: "It is well settled that an application for bail from

a person charged with a capital offense (now an offense punishable by reclusion

perpetua) must be set for hearing at which both the defense and the prosecution must

be given reasonable opportunity to prove (in case of the prosecution) that the evidence

of guilt of the applicant is strong, or (in the case of the defense) that such evidence of

guilt was not strong." The respondent judge was ordered to pay a fine of P20,000.00

and warned to exercise greater care and diligence in the performance of his duties.

(7) De Guia v. Maglalang decided in 1993,[18] the respondent judge issued a warrant

of arrest and also fixed the bail of an accused charged with the non bailable offense of

statutory rape without allowing the prosecution an opportunity to show that the

evidence of guilt against the accused is strong. Respondent judge alleged that the only

evidence on record — the sworn statements of the complaining witness and her

guardian — were not sufficient to justify the denial of bail. We held: "It is an

established principle that in cases where a person is accused of a capital offense, the

trial court must conduct a hearing in a summary proceeding, to allow the prosecution

an opportunity to present, within a reasonable time, all evidence it may desire to

produce to prove that the evidence of guilt against the accused is strong, before

resolving the issue of bail for the temporary release of the accused. Failure to conduct

a hearing before fixing bail amounts to a violation of due process." It was noted that

the warrant of arrest was returned unserved and that after the case was re-raffled to the

complainant judge's sala, the warrant was set aside and cancelled. There was no

evidence on record showing whether the approved bail was revoked by the

complainant judge, whether the accused was apprehended or whether the accused

filed an application for bail. Hence, the respondent judge was ordered to pay a fine of

P5,000.00 instead of the usual P20,000.00 that the court imposes on judges who grant

the application of bail without notice and hearing.

(8) Borinaga v. Tamin decided in 1993.[19] In this case, a complaint for murder was

filed against five persons. While the preliminary investigation was pending in the

Municipal Circuit Trial Court, a petition for bail was filed by one of the accused

before the respondent judge in the Regional Trial Court. The respondent judge

ordered the prosecutor to appear at the hearing to present evidence that the guilt of the

accused is strong. At the scheduled hearing, the public prosecutor failed to appear

prompting the respondent to grant the application for bail. We held: "Whether the

motion for bail of an accused who is in custody for a capital offense be resolved in a

summary proceeding or in the course of a regular trial, the prosecution must be given

an opportunity to present within a reasonable time all evidence it may desire to

introduce before the court may resolve the motion for bail." The respondent judge was

fined P20,000.00 and was warned that the commission of a similar offense in the

future will be dealt with more severely.

(9) Aurillo v. Francisco decided in 1994.[20] In this administrative case, the

respondent judge issued two separate warrants of arrest against two persons charged

with murder and parricide, but fixed the amount of bail for each accused without

notifying the prosecution of any motion to fix bail nor of any order granting the same.

Citing People v. Dacudao,[21] we held: "A hearing is absolutely indispensable before a

judge can properly determine whether the prosecution's evidence is weak or strong.

Hence, a denial of the prosecution's request to adduce evidence, deprives it of

procedural due process, a right to which it is equally entitled as the defense. A hearing

is required to afford the judge a basis for determining the existence of those factors set

forth under Rule 114, Sec 6." The respondent judge was ordered to pay a fine of

P20,000 with a warning that the commission of the same or similar acts in the future

will be dealt with more severely.

(10) Estoya v. Abraham-Singson decided in 1994[22] In this case, an administrative

complaint was filed against the respondent judge, alleging, among others, that she

granted an application for bail filed by the accused charged with murder. The grant

was made over the objection of the prosecution which insisted that the evidence of

guilt was strong and without allowing the prosecution to present evidence in this

regard. We held: "In immediately granting bail and fixing it at only P20,000.00 for

each of the accused without allowing the prosecution to present its evidence, the

respondent denied the prosecution due process. This Court had said so in many cases

and had imposed sanctions on judges who granted applications for bail in capital

offenses and in offenses punishable by reclusion perpetua without giving the

prosecution the opportunity to prove that the evidence of guilt is strong." The

respondent judge was dismissed from service because the erroneous granting of bail

was just one of the offenses found to have been committed by her in the aforesaid

complaint.

(11) Aguirre v. Belmonte decided in 1994.[23] In this administrative case the

respondent judge issued warrants of arrest and, at the same time and on his own

motion. authorized the provisional release on bail of the accused in two criminal cases

for murder. The accused were still at large at the time the order granting bail was

issued. We held: "A hearing is mandatory before bail can be granted to an accused

who is charged with a capital offense." The judge was ordered to pay a fine of

P25,000.00 with a warning that a repetition of the same or similar acts in the future

will be dealt with more severely. He was meted a fine in a higher amount than the

usual P20,000.00 because it involved two criminal cases wherein the respondent

judge, "was not only the grantor of bail but likewise the applicant therefor."

(12) Lardizabal v. Reyes decided in 1994.[24] In this administrative case, the

respondent judge issued an order directing the arrest of the accused charged with rape

and, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without

application on the part of the accused to be admitted to bail. When the accused filed a

motion to reduce bailbond, the respondent judge again, without any prior notice and

hearing, reduced the bail to P40,000.00.We held: "The rule is explicit that when an

accused is charged with a serious offense punishable by reclusion perpetua, such as

rape, bail may be granted only after a motion for that purpose has been filed by the

accused and a hearing thereon conducted by a judge to determine whether or not the

prosecution's evidence of guilt is strong." The respondent judge was ordered to pay a

fine of P20,000.00 with a warning that a repetition of similar or the same offense will

be dealt with more severely.

(13) Guillermo v. Reyes decided in 1995[25] involving an administrative complaint

against the respondent judge for granting bail to the two accused charged with serious

illegal detention. When the two accused first filed a joint application for bail, the

petition for bail was duly heard and the evidence offered by the accused and the

prosecution in opposition thereto were properly taken into account. However, the

respondent judge denied the application for bail on the ground that it was premature

since the accused were not yet in custody of the law. In a subsequent order, the

respondent judge, without conducting any hearing on the aforestated application and

thereby denying the prosecution an opportunity to oppose the same, granted said

petition upon the voluntary appearance in court of the two accused. Respondent judge

insisted that there was a hearing but the proceeding he adverted to was that which was

conducted when the motion for bail was first considered and then denied for being

premature. We held: "The error of the respondent judge lies in the fact that in his

subsequent consideration of the application for bail, he acted affirmatively thereon

without conducting another hearing and what is worse, his order concededly lacked

the requisite summary or resume of the evidence presented by the parties and

necessary to support the grant of bail." The respondent judge was reprimanded

because despite the irregularity in the procedure adopted in the proceeding, the

prosecution was undeniably afforded the benefit of notice and hearing. No erroneous

appreciation of the evidence was alleged nor did the prosecution indicate its desire to

introduce additional evidence in an appropriate challenge to the aforestated grant of

bail by the respondent.

(14) Santos v. Ofilada decided in 1995.[26] In this case, an administrative complaint

was filed against the respondent judge, who, without notice and hearing to the

prosecution, granted bail to an accused charged with murder and illegal possession of

firearm. We held: "Where admission to bail is a matter of discretion, a hearing is

mandatory before an accused can be granted bail. At the hearing, both the prosecution

and the defense must be given reasonable opportunity to prove, in case of the

prosecution, that the evidence of guilt of the applicant is strong, and in the case of the

defense, that evidence of such guilt is not strong." The respondent judge was ordered

to pay a fine of P20,000.00 with a warning that a repetition of similar acts will warrant

a more severe sanction.

(15) Sule v. Biteng decided in 1995.[27] In this administrative case, the respondent

judge, without affording the prosecution the opportunity to be heard, granted with

indecent haste the petition for bail filed by the accused charged with murder because

the accused "x x x voluntarily surrendered to the authorities as soon as he was

informed that he was one of the suspect (sic) x x x" We held: "With his open

admission that he granted bail to the accused without giving the prosecution any

opportunity to be heard, the respondent deliberately disregarded decisions of this court

holding that such act amounts to a denial of due process, and made himself

administratively liable for gross ignorance of the law for which appropriate sanctions

may be imposed." The respondent judge was ordered to pay a fine of P20,000.00 and

warned that commission of the same or similar acts in the future will be dealt with

more severely.

(16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996.[28] In this

administrative case, the respondent judge, without hearing nor comment from the

prosecution, granted bail to an accused charged with murder. Notably, no bail was

recommended in the warrant of arrest. We held: "When bail is a matter of discretion,

the judge is required to conduct a hearing and to give notice of such hearing to the

fiscal or require him to submit his recommendation. x x x Truly, a judge would not be

in a position to determine whether the prosecution's evidence is weak or strong unless

a hearing is first conducted." A fine of P20,000.00 was imposed on the respondent

judge with the stern warning that a repetition of the same or similar acts in the future

will be dealt with more severely.

The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence, or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties.

Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application for bail to the discretion of the court. Hence:

(1) In the case of Gimeno v. Arcueno, Sr.,[29] an administrative complaint was filed

against the respondent judge for granting bail to one of the accused in a robbery with

homicide case without affording the prosecution a chance to be heard. The respondent

judge explained that he issued an order for the motion to fix bail but the public

prosecutor filed a comment instead which respondent judge thought was adequate

compliance with law. Respondent added that the evidence of guilt of the accused, as

disclosed by the records, was not so strong as to deny the application for bail. In fact,

the accused who filed for bail, together with three others, were later dropped by the

Office of the Provincial Prosecutor from the information for failure of the witnesses to

positively identify them. We held: "The grant of bail is a matter of right except in

cases involving capital offenses when the matter is left to the sound discretion of the

court. That discretion lies, not in the determination whether or not a hearing should be

held but in the appreciation and evaluation of the prosecution's evidence of guilt

against the accused. x x x A hearing is plainly indispensable before a judge can aptly

be said to be in a position to determine whether the evidence for the prosecution is

weak or strong." Although the respondent judge's explanation was not enough to

completely exculpate him, the circumstances, coupled with his sincere belief in the

propriety of his order warranted a mitigation of the usual sanction the Court imposes

in cases of this nature. The respondent judge was ordered to pay a fine of P5,000.00

and warned that a repetition of the same or similar act in the future will be dealt with

more severely.

(2) In the case of Concerned Citizens v. Elma,[30] an administrative complaint was

filed against the respondent judge for granting bail to a person charged with illegal

recruitment in large scale and estafa in five separate information. The accused filed a

motion to fix bail and the respondent judge instead of setting the application for

hearing, directed the prosecution to file its comment or opposition. The prosecution

submitted its comment leaving the application for bail to the discretion of the court.

The respondent judge, in granting the bail of the accused rationalized that in ordering

the prosecution to comment on the accused's motion to fix bail, he has substantially

complied with the requirement of a formal hearing. He further claimed that he

required the prosecution to adduce evidence but the latter refused and left the

determination of the motion to his discretion. This Court held, "It is true that the

weight of the evidence adduced is addressed to the sound discretion of the court.

However, such discretion may only be exercised after the hearing called to ascertain

the degree of guilt of the accused for the purpose of determining whether or not he

should be granted liberty. x x x In the case at bar, however, no formal hearing was

conducted by the respondent judge. He could not have assessed the weight of

evidence against the accused Gatus before granting the latter's application for bail."

The respondent judge was dismissed from service because he was previously fined for

a similar offense and was sternly warned that a repetition of the same or similar

offense would be dealt with more severely.

(3) In the case of Baylon v. Sison,[31] an administrative complaint was filed against

the respondent judge for granting bail to several accused in a double murder case. The

respondent judge claimed that he granted the application for bail because the assistant

prosecutor who was present at the hearing did not interpose an objection thereto and

that the prosecution never requested that it be allowed to show that the evidence of

guilt is strong but instead, submitted the incident for resolution. The respondent judge

further claimed that the motion for reconsideration of the order granting bail was

denied only after due consideration of the pertinent affidavits. We held: "The

discretion of the court, in cases involving capital offenses may be exercised only after

there has been a hearing called to ascertain the weight of the evidence against the

accused. Peremptorily, the discretion lies, not in determining whether or not there will

be a hearing, but in appreciating and evaluating the weight of the evidence of guilt

against the accused." The respondent judge was ordered to pay a fine of P20,000.00

with a stern warning that the commission of the same or similar offense in the future

would be dealt with more severely.

A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. "The importance of a hearing has been emphasized in not a few cases wherein the court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused."[32]

In the recent case of Tucay v. Domagas,[33] an administrative complaint was filed against the respondent judge for granting bail to an accused charged with murder. The application for bail contained the annotation "No objection" of the provincial prosecutor and the respondent judge, without holding a hearing to determine whether the evidence of the prosecution was strong, granted bail and ordered the release of the accused from detention with instructions to the bondsman to register the bond with the Register of Deeds within ten days. It was later found out that the assessed value of the property given was short of the amount fixed for the release of the accused. We held: "Although the provincial prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have nevertheless have set the petition for bail for hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail application. x x x Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent judge have ordered the petition for bail and ordered the release of the accused." Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern warning that the commission of a similar offense in the future would be dealt with more severely.

Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from the abovecited case, is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in fixing the amount of bail.[34] This Court, in a number of cases[35] held that even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer

questions in order to ascertain not only the strength of the state's evidence but also the adequacy of the amount of bail.

After hearing, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution.[36] On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail may be invalidated because the summary of evidence for the prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense.

This court in the case of Carpio v. Maglalang[37] invalidated the order of respondent judge granting bail to the accused because "Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escano."

With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial court judges to perform their mandatory duty of conducting the required hearing in bail applications where the accused stands charged with a capital offense.

An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the accused without first conducting a hearing to prove that the guilt of the accused is strong despite his knowledge that the offense charged is a capital offense in disregard of the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by Administrative Circular No. 12-94.

Respondent judge admittedly granted the petition for bail based on the prosecution's declaration not to oppose the petition. Respondent's assertion, however, that he has a right to presume that the prosecutor knows what he is doing on account of the latter's familiarity with the case due to his having conducted the preliminary investigation is faulty. Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor.

In the case of Montalbo v. Santamaria,[38] this Court held that the respondent judge is duty bound to exercise judicial discretion conferred upon

him by law to determine whether in the case at bar, the proof is evident or the presumption of guilt is strong against the defendant and to grant or deny the petition for provisional liberty. It also held that a writ of mandamus will lie in order to compel the respondent judge to perform a duty imposed upon him by law.

The absence of objection from the prosecution is never a basis for granting bail to the accused. It is the court's determination after a hearing that the guilt of the accused is not strong that forms the basis for granting bail. Respondent Judge should not have relied solely on the recommendation made by the prosecutor but should have ascertained personally whether the evidence of guilt is strong. After all, the judge is not bound by the prosecutor's recommendation. Moreover, there will be a violation of due process if the respondent Judge grants the application for bail without hearing since Section 8 of Rule 114 provides that whatever evidence presented for or against the accused's provisional release will be determined at the hearing.

The practice by trial court judges of granting bail to the accused when the prosecutor refuses or fails to present evidence to prove that the evidence of guilt of the accused is strong can be traced to the case of Herras Teehankee v. Director of Prisons[39] where this Court gave the following "instructions" to the People's Court,[40] thus:

"1) In capital cases like the present when the prosecutor does not oppose the petition

for release on bail, the court should, as a general rule, in the proper exercise of its

discretion, grant the release after the approval of the bail which it should fix for the

purpose;

2) But if the court has reasons to believe that the special prosecutor's attitude is not

justified, it may ask him questions to ascertain the strength of the state's evidence or to

judge the adequacy of the amount of bail;

3) When, however, the special prosecutor refuses to answer any particular question

on the ground that the answer may involve a disclosure imperiling the success of the

prosecution or jeopardizing the public interest, the court may not compel him to do so,

if and when he exhibits a statement to that effect of the Solicitor General, who, as

head of the Office of Special Prosecutors, is vested with the direction and control of

the prosecution, and may not, even at the trial, be ordered by the court to present

evidence which he does not want to introduce — provided, of course, that such refusal

shall not prejudice the rights of the defendant or detainee."[41]

The rationale for the first instruction was stated by this Court, as follows:

"If, for any reason, any party should abstain from introducing evidence in the case for

any definite purpose, no law nor rule exists by which he may be so compelled and the

court before which the case is pending has to act without that evidence and, in so

doing, it clearly would not be failing in its duties. If the Constitution or the law plots a

certain course of action to be taken by the court when certain evidence is found by it

to exist, and the opposite course if that evidence is wanting, and said evidence is not

voluntarily adduced by the proper party, the court's clear duty would be to adopt that

course which has been provided for in case of absence of such evidence. Applying the

principle to the case at bar, it was no more within the power — nor discretion — of

the court to coerce the prosecution into presenting its evidence than to force the

prisoner into adducing hers. And when both elected not to do so, as they had a perfect

right to elect, the only thing remaining for the court to do was to grant the application

for bail."

As for the second instruction, this Court stated that:

"The prosecutor might not oppose the application for bail and might refuse to satisfy

his burden of proof, but where the court has reasons to believe that the prosecutor's

attitude is not justified, as when he is evidently committing a gross error or a

dereliction of duty, the court must possess a reasonable degree of control over him in

the paramount interest of justice. Under such circumstance, the court is authorized by

our second instruction to inquire from the prosecutor as to the nature of his evidence

to determine whether or not it is strong, it being possible for the prosecutor to have

erred in considering it weak and, therefore, recommending bail."

As for the third instruction, this Court declared:

"It must be observed that the court is made to rely upon the official statement of the

Solicitor General on the question of whether or not the revelation of evidence may

endanger the success of the prosecution and jeopardize the public interest. This is so,

for there is no way for the court to determine that question without having the

evidence disclosed in the presence of the applicant, disclosure which is sought to be

avoided to protect the interests of the prosecution before the trial."

It is to be recalled that Herras Teehankee was decided fully half a century ago under a completely different factual milieu. Haydee Herras Teehankee was indicted under a law dealing with treason cases and collaboration with the enemy. The said "instructions" given in the said case under the 1940 Rules of Court no longer apply due to the amendments introduced in the 1985 Rules of Court.

In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as follows:

"Sec. 5. Capital offenses defined. — A capital offense, as the term is used in this

rule, is an offense which, under the law existing at the time of its commission, and at

the time of the application to be admitted to bail, may be punished by death.

Sec. 6. Capital offenses not bailable. — No person in custody for the

commission of a capital offense shall be admitted to bail if the evidence of his guilt is

strong.

Sec. 7. Capital offense — Burden of proof . — On the hearing of an application

for admission to bail made by any person who is in custody for the commission of a

capital offense, the burden of showing that the evidence of guilt is strong is on the

prosecution.

The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as amended by Administrative Circular No. 12-94, since some phrases and lines have been intercalated, as shown by the underscored phrases and statements below:

"Sec. 6. Capital offense, defined. — A capital offense, as the term is used in

these rules, is an offense which, under the law existing at the time of its commission

and at the time of the application to be admitted to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. — No person charged with a capital offense, of an offense

punishable by reclusion perpetua or life imprisonment, when evidence of guilt is

strong, shall be admitted to bail regardless of the stage of the criminal prosecution.

Sec. 8. Burden of proof in bail application. — At the hearing of an application

for admission to bail filed by any person who is in custody for the commission of an

offense punishable by death, reclusion perpetua or life imprisonment, the prosecution

has the burden of showing that evidence of guilt is strong. The evidence presented

during the bail hearings shall be considered automatically reproduced at the

trial, but upon motion of either party, the court may recall any witness for

additional examination unless the witness is dead, outside of the Philippines or

otherwise unable to testify."

It should be noted that there has been added in Section 8 a crucial sentence not found in the counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored sentence in Section 8, Rule 114

of the 1985 Rules of Court, as amended, was added to address a situation where in case the prosecution does not choose to present evidence to oppose the application for bail, the judge may feel duty-bound to grant the bail application. In such a case, the judge may well lose control of the proceedings. In a sense, this undermines the authority of a judge since all that the prosecution has to do to "force" the judge to grant the bail application is to refrain from presenting evidence opposing the same. In effect, this situation makes Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless since whether or not the evidence of guilt of a person charged with a capital offense is strong cannot be determined if the prosecution chooses not to present evidence or oppose the bail application in a hearing precisely to be conducted by the trial judge for that purpose, as called for in the two sections. In the event that the prosecution fails or refuses to adduce evidence in the scheduled hearing, then a hearing as in a regular trial should be scheduled. In this regard, a hearing in the application for bail necessarily means presentation of evidence, and the filing of a comment or a written opposition to the bail application by the prosecution will not suffice.

The prosecution under the revised provision is duty bound to present evidence in the bail hearing to prove whether the evidence of guilt of the accused is strong and not merely to oppose the grant of bail to the accused. "This also prevents the practice in the past wherein a petition for bail was used as a means to force the prosecution into a premature revelation of its evidence and, if it refused to do so, the accused would claim the grant of bail on the ground that the evidence of guilt was not strong."[42]

It should be stressed at this point, however, that the nature of the hearing in an application for bail must be equated with its purpose i.e., to determine the bailability of the accused. If the prosecution were permitted to conduct a hearing for bail as if it were a full-dress trial on the merits, the purpose of the proceeding, which is to secure provisional liberty of the accused to enable him to prepare for his defense, could be defeated. At any rate, in case of a summary hearing, the prosecution witnesses could always be recalled at the trial on the merits.[43]

In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this Court reiterates the duties of the trial judge in case an application for bail is filed:

(1) Notify the prosecutor of the hearing of the application for bail or require him to

submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended);

(2) Conduct a hearing of the application for bail regardless of whether or not the

prosecution refuses to present evidence to show that the guilt of the accused is strong

for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8,

supra);

(3) Decide whether the evidence of guilt of the accused is strong based on the

summary of evidence of the prosecution (Baylon v. Sison, supra);

(4) If the guilt of the accused is not strong, discharge the accused upon the approval

of the bailbond. (Section 19, supra). Otherwise, petition should be denied.

The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.[44] A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles.[45]

Respondent judge herein insists that he could exercise his discretion in granting bail to the accused since the Assistant Prosecutor signified in writing that he had no objection to the grant of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is to be emphasized that although the court may have the discretion to grant the application for bail, in cases of capital offenses, the determination as to whether or not the evidence of guilt is strong can only be reached after due hearing which, in this particular instance has not been substantially complied with by the respondent Judge.

While it may be true that the respondent judge set the application for bail for hearing three times, thus showing lack of malice or bad faith in granting bail to the accused, nonetheless, this does not completely exculpate him because the fact remains that a hearing has not actually been conducted in violation of his duty to determine whether or not the evidence against the accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine in cases where the judge grants the application for bail without notice and hearing. In view however of the circumstances of this case, a reprimand instead of the P20,000.00 would suffice.

WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32, Agoo, La Union, is hereby REPRIMANDED with the WARNING that a repetition of the same or similar acts in the future will be dealt with more severely.

SO ORDERED.

PEOPLE V JUDGE CABRAL

[G.R. No. 131909. February 18, 1999]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO CABRAL,

Presiding Judge, RTC, Branch 30, Camarines Sur and RODERICK

ODIAMAR, respondents.

D E C I S I O N

ROMERO, J.:

Assailed before this Court is the August 1, 1997 decision[1] of the Court of Appeals in CA

GR. No. 42318 which affirmed the March 24, 1995 and June 14, 1996 orders[2] of the lower court

granting accused-respondent‘s Motion for Bail and denying petitioner People‘s Motions ―to

Recall and Invalidate Order of March 24, 1995‖ and ―to Recall and/or Reconsider the Order of

May 5, 1995‖ confirming the hospitalization of accused-respondent.

Accused-respondent Roderick Odiamar was charged with rape upon the complaint of Cecille

Buenafe. In a bid to secure temporary liberty, accused-respondent filed a motion praying that he

be released on bail which petitioner opposed by presenting real, documentary and testimonial

evidence. The lower court, however, granted the motion for bail in an order, the dispositive

portion of which reads:

―WHEREFORE, the evidence not being strong at the (sic) stage of the trial, this court

is constrained to grant bail for the provisional liberty of the accused Roderick

Odiamar in the amount of P30,000.00.‖ (Italics supplied)

Believing that accused-respondent was not entitled to bail as the evidence against him was

strong, the prosecution filed the two abovementioned motions which the lower court disposed of,

thus:

―WHEREFORE, the motions dated 10 May 1995 and 15 May 1995 both filed by

Atty. Romulo Tolentino, State Prosecutor, are hereby denied, for lack of merit.‖

The above-cited orders prompted petitioner to file a petition before the Court of Appeals

with prayer for temporary restraining order and preliminary injunction. The Court of Appeals

denied the petition reasoning thus:

―We have examined in close and painstaking detail the records of this case, and find

that the claim of the People that the respondent judge had over-stepped the exercise of

his jurisdiction in issuing the questioned orders, is unimpressed with merit. We are

not inclined to declare that there was grave abuse in respondent court‘s exercise of its

discretion in allowing accused to obtain bail. There is grave abuse of discretion where

the power is exercised in an arbitrary or despotic manner by reason of passion,

prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual

refusal to perform the duty enjoined or to act at all in contemplation of law. We do

not find this to be so in this case. Our ruling is based not only on the respect to be

accorded the findings of facts of the trial court, which had the advantage (not

available to Us) of having observed first-hand the quality of the autoptic proference

and the documentary exhibits of the parties, as well as the demeanor of the witnesses

on the stand, but is grounded on the liberal slant given by the law in favor of the

accused. Differently stated, in the absence of clear, potent and compelling reasons,

We are not prepared to supplant the exercise of the respondent court‘s discretion with

that of Our own.‖

Still convinced by the merit of its case, petitioner filed the instant petition submitting the

following sole issue:

―WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION IN ISSUING THE ASSAILED DECISION AND RESOLUTION

DESPITE A SHOWING BY THE PROSECUTION THAT THERE IS STRONG

EVIDENCE PROVING RESPONDENT‘S GUILT FOR THE CRIME CHARGED.‖

The above-submitted issue pertains to the orders of the lower court granting accused-

respondent‘s application for bail which it justified through its summary of the evidence presented

during the hearing. Said order states, thus:

―Now going over the evidence adduced in conjunction with the petition for bail filed

by the accused through counsel, the court believes that the evidence so far presented

by the prosecution is not strong. This is so because the crime of rape is not to be

presumed; consent and not physical force is the common origin of acts between man

and woman. Strong evidence and indication of great weight alone support such

presumption. It is the teaching of applicable doctrines that form the defense in rape

prosecution. In the final analysis, it is entitled to prevail, not necessarily because the

untarnished truth is on its side but merely because it can raise reasonable, not fanciful

doubts. It has the right to require the complainant (sic) strong evidence and an

indication of great weight (People v. Godoy, G.R. No. L-31177, July 15, 1976), and in

the instant case, the reasonable doubt is on the evidence of the prosecution, more so,

because the intrinsic nature of the crime, the conviction or the acquittal of the accused

depends almost entirely on the credibility of the complainant (People v. Oliquino,

G.R. No. 94703, May 31, 1993). Rightly so, because in the commission of the offense

of rape the facts and circumstances occuring either prior, during and subsequent

thereto may provide conclusion whether they may negate the commission thereof by

the accused (People v. Flores, L-6065, October 26, 1986). If they negate, they do

presuppose that the evidence for the prosecution is not strong. More so, because in

the instant case, the facts and circumstances showing that they do seem to negate the

commission thereof were mostly brought out during the cross-examination. As such,

they deserve full faith and credence because the purpose thereof is to test accuracy

and truthfulness and freedom from interest and bias or the reverse (Rule 132, Sec. 6,

Revised Rules of Evidence). The facts and circumstances brought up are as follow, to

wit:

a) That, when the offended party Cecille Buenafe rode in the jeepney then driven by

the accused Roderick Odiamar in that evening of July 20, 1994 at about 8:00 o‘clock

from the Poblacion, Lagonoy, Camarines Sur the former knew that it was for a joy

ride. In fact, she did not even offer any protest when the said jeepney proceeded to

the Pilapil Beach resort at Telegrafo, San Jose, Camarines Sur instead of Sabang,

same municipality, where she and Stephen Florece intended to go. And when the said

jeepney was already inside that resort, Cecille even followed the accused in going

down from the jeepney also without protest on her part, a fact which shows

voluntariness on the part of the offended party and, therefore, to the mind of the court

her claim of rape should not be received with precipitate credulity. On the contrary,

an insight into the human nature is necessary (People v. Barbo, 56 SCRA 495). And

it is only when the testimony is impeccable and rings true throughout where it shall be

believed (People v. Tapao, G.R. No. L-41704, October 23, 1981). Rightly so, because

the aphorism that evidence to be believed must not only proceed from the mouth of a

credible witness but it must be credible in itself in conformity with the common

experience and observation of mankind is nowhere of moral relevance than in cases

involving prosecution of rape (People v. Macatangay, 107 Phil. 188);

b) That, in that resort, when the accused Roderick Odiamar and companions allegedly

forced the offended party Cecille Buenafe to drink gin, the latter, at first, refused and

even did not swallow it but later on voluntarily took four (4) shots there shows that

there (was) no force. And as regards the claim that the accused Roderick Odiamar

and companions allegedly forced the said offended party to inhale smoke, out of a

small cigarette, presumably a marijuana, it becomes doubtful because the prosecution,

however, failed to present any portion of that so-called small cigarette much less did it

present an expert witness to show that inhaling of smoke from the said cigarette would

cause dizziness. Rightly so, because administration of narcotics is covered by Art.

335, par. 2 Revised Penal Code (People v. Giduces C.A. 38 O.C. 1434 cited in the

Revised Penal Code, Aquino, Vol.III, pp. 392). As such, the burden of proof rests

with the prosecution but it failed to do so;

c) That, in that cottage where the accused, Roderick Odiamar allegedly brought the

offended party, Cecille Buenafe, the former was able to consummate the alleged

offense of rape by removing the two (2) hands of the offended party, placed them on

her knee, separating them thereby freeing the said hand and consequently pushed the

head of the accused but the latter was able to insert his penis when the said offended

party was no longer moving and the latter became tired. Neither evidence has been

presented to show that the offended party suffered an injury much less any part of her

pants or blouse was torn nor evidence to show that there was an overpowering and

overbearing moral influence of the accused towards the offended party (People v.

Mabunga, G.R. No. 96441d, March 13, 1992) more so, because force and violence in

the offense of rape are relative terms, depending on the age, size and strength of the

parties and their relation to each other (People v. Erogo, 102077 January 4, 1994);

d) That, after the alleged commission of rape at about 3:00 o‘clock in the early

morning of July 21, 1994, the offended party, Cecille, Stephen Florece and the latter‘s

companions all boarded the same jeepney going back to the Poblacion of Lagonoy,

without the said offended party, protesting, crying or in any way showing sign of grief

regarding the alleged commission of the offense of rape until the jeepney reached the

house of Roderick Odiamar where the latter parked it. As in other cases, the

testimony of the offended party shall not be accepted unless her sincerity and candor

are free from suspicion, because the nature of the offense of rape is an

accusation easy to be made, hard to be proved but harder to be defended by the party

accused though innocent (People v. Francisco G.R. No. L-43789, July 15, 1981). It

becomes necessary, therefore, for the courts to exercise the most painstaking care in

scrutinizing the testimony of the witnesses for the prosecution (People v. Dayag, L-

30619, March 29, 1974);

e) That the offended party, Cecille Buenafe had herself physically examined by Dr.

Josephine Decena for medical certificate dated July 27, 1994 and it states, among

others, that there was a healed laceration on the hymen, her laceration might have

been sustained by the said offended party, a month, six (6) months, and even a year,

prior to the said examination and that the said laceration might have been caused by

repeated penetration of a male sex organ probably showing that the offended party

might have experienced sexual intercourse. This piece of testimony coming from an

expert, such finding is binding to court (Rules of Court, Moran, op.cit, vol 5, 1963, ed.

pp. 413).

f) That the offended party, Cecille Buenafe accompanied by the Station Commander

of Lagonoy, Camarines Sur, proceeded to Naga City and upon the suggestion of Gov.

Bulaong, the said offended party submitted for medical treatment before the same

physician per medical certificate dated August 1, 1994 but according to the said

physician the lesions near the umbilicus were due to skin diseases but the said

offended party claim they were made by the accused after the sexual acts. As such,

there were contradictions on material points, it becomes of doubtful veracity (People

v. Palicte 83 Phil.) and it also destroys the testimony (People v. Garcia, G.R. No.

13086, March 27, 1961). As to the fact that the said lesion was made by the accused

subsequent to the commission of the act, it is immaterial. As such, it has no probative

value.‖

The lower court concluded that the evidence of guilt was not strong.

The Office of the Solicitor General disagreed with the lower court. It opined that aside from

failing to include some pieces of evidence in the summary, the trial court also misapplied some

well-established doctrines of criminal law. The Office of the Solicitor General pointed out the

following circumstances duly presented in the hearing for bail:

―First. There was no ill motive on the part of Cecille to impute the heinous crime of

rape against respondent (People v. Paragsa, 83 SCRA 105 [1978]; People v. Delovino,

247 SCRA 637 [1995]).

Second. Dr. Belmonte, the psychiatrist who attended to Cecille testified that based on

her psychiatric examination of the latter, Cecille manifested psychotic signs and

symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor

retardation, poverty of thought content as well as depressive signs and

symptoms. These abnormal psychological manifestations, according to Dr. Belmonte,

are traceable to the rape incident (Pages 5-7, TSN, November 22, 1994.)

Third. The unrebutted offer of compromise by respondent is an implied admission of

guilt (People v. Flore, 239 SCRA 83 [1994]).

Fourth. Cecille was threatened by a deadly weapon and rendered unconscious by

intoxication and inhalation of marijuana smoke.

Fifth. The fact that after the conduct of two (2) preliminary investigations, ‗no bail

was recommended in the information‘ constitutes ‗clear and strong evidence of the

guilt of (all) the accused‘ (Baylon v. Sison, 243 SCRA 284 [1995].

Sixth. Cecille categorically testified on re-cross examination (pages 5-7, Order) that

respondent succeeded in forcibly deflowering her because she was already weak and

dizzy due to the effect of the smoke and the gin. Her declarations remain unrebutted.

Seventh. Cecille categorically testified that she performed acts manifesting her

lament, torment and suffering due to the rape. She went to Stephen Florece, cried and

complained about the incident. Instead of helping her, Florece threatened to harm her

and her family. (Pages 9-13, November 17, 1994). The statements of Cecille are

positive statements which, under existing jurisprudence, are stronger than the denials

put forth by respondent (Batiquin v. Court of Appeals, 258 SCRA 334 [1996]).

Eight. The reliance by trial court on the testimony of Dr. Decena to the effect that the

lacerations suffered by Cecille ‗might have been sustained by the latter a month, six

(6) months or even a year prior to the examination‘ (Page 12 (e), Order, March 24,

1995) thus implying that respondent could not have committed the crime is highly

misplaced.

Dr. Decena herself testified that she cannot tell ‗how old is an old hymenal laceration‘

because she cannot indicate when an old laceration was inflicted and that from the

size of the vagina she ‗could not point the exact cause‘ (Pages 7-10, TSN, December

9, 1994). Nevertheless, proof of hymenal laceration is not indispensable in

indictments for rape as a broken hymen is not an essential element of the crime

(People v. Echegaray, 257 SCRA 561 [1996]). Further, in crimes against chastity, the

medical examination of the victim‘s genitalia is not an indispensable element for the

successful prosecution of the crime. The examination is merely corroborative in

nature. (People v. Arce, 227 SCRA 406 [1993]).

Ninth. With respect to the cigarette wounds, Dr. Decena positively testified that the

wounds could have been ‗caused by cigarette butts as alleged by the victim‘ (Page 6,

TSN, December 9, 1994) which confirms Cecille‘s testimony (quoted in the Order at

page 9) that respondent burned her ‗right side of the stomach‘ thrice.‖

The above points are well taken and have impressed upon this Court the merits of the instant

petition.

The 1987 Constitution in Article III, Section 13 of the Bill of Rights provides:

―All persons, except those charged with offenses punishable by reclusion perpetua

when evidence of guilt is strong, shall before conviction, be bailable by sufficient

sureties, or be released on recognizance as may be provided by law. The right to bail

shall not be impaired even when the privilege of the writ of habeas corpus is

suspended. Excessive bail shall not be required.‖ (Italics supplied)

In view of the above exception to the constitutional guarantee on bail and in accordance with

its rule-making powers,[3] the Supreme Court, in promulgating the Rules of Court, adopted the

following provision:

―Sec. 7. No person charged with a capital offense, or an offense punishable

by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be

admitted to bail regardless of the stage of the criminal prosecution.‖[4](Italics supplied)

In this case, accused-respondent was being charged with rape qualified by the use of a

deadly weapon punishable by reclusion perpetua to death.[5] As such, bail is discretionary and

not a matter of right. The grant or denial of an application for bail is, therefore, dependent on

whether the evidence of guilt is strong which the lower court should determine in a hearing

called for the purpose. The determination of whether the evidence of guilt is strong, in this

regard, is a matter of judicial discretion. While the lower court would never be deprived of its

mandated prerogative to exercise judicial discretion, this Court would unhesitatingly reverse the

trial court‘s findings if found to be laced with grave abuse of discretion.

By judicial discretion, the law mandates the determination of whether proof is evident or the

presumption of guilt is strong.[6] ―Proof evident‖ or ―Evident proof‖ in this connection has been held

to mean clear, strong evidence which leads a well-guarded dispassionate judgment to the

conclusion that the offense has been committed as charged, that accused is the guilty agent, and

that he will probably be punished capitally if the law is administered.[7] ―Presumption great‖ exists

when the circumstances testified to are such that the inference of guilt naturally to be drawn

therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable

probability of any other conclusion.[8] Even though there is a reasonable doubt as to the guilt of

accused, if on an examination of the entire record the presumption is great that accused is guilty

of a capital offense, bail should be refused.[9] (Emphasis and Italics supplied)

In other words, the test is not whether the evidence establishes guilt beyond reasonable

doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the

court is ministerially bound to decide which circumstances and factors are present which would

show evident guilt or presumption of guilt as defined above.[10]

This Court has observed that the lower court‘s order failed to mention and include some

significant factors and circumstances which, to the mind of this Court are strong, clear and

convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination

of the victim as well as her findings that the latter manifested ―psychotic signs and symptoms

such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of

thought content as well as depressive signs and symptom.‖[11] This particular testimony should

have been considered and included in the summary as it was given by an expert

witness. Second, the unrebutted offer of compromise by accused-respondent is an implied

admission of guilt which should have been noted as an offer of a compromise is generally

considered as admissible evidence against the party making it.[12]

Aside from failing to mention those important pieces of evidence and testimonies, this Court

has likewise observed that the lower court misappplied some doctrines in criminal law. First, the

lower court, in its order, intoned the following doctrine that ―evidence to be believed must not

only proceed from the mouth of a credible witness but it must be credible in itself in conformity

with common experience and observation of mankind.‖

According to the lower court, the credibility of the complainant is suspect because she

willingly went with accused-respondent to the resort where she was allegedly raped. In the scene

of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant,

likewise, never protested nor cried while they were on their way to accused-respondent‘s

house. Because of those findings, the lower court doubted the credibility of complainant and

stated that the crime of rape is not to be presumed and that sexual acts between a man and a

woman are presumed to be consensual. In overcoming such presumption, much depends on the

credibility of the complainant.

This Court cannot agree. First, there was no finding of any ill-motive on the part of

complainant in filing the rape charge against accused-respondent. This should have been taken

into consideration. The following rebuttal of petitioner to the findings of the lower court is more

credible:

―It must also be stressed that Cecille testified that she was forced by respondent to

drink gin with the help of his friends by holding her hair and putting the glass on her

mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew

smoke into her face forcing her to inhale the intoxicating smoke. Whenever she

attempted to leave the place, she was forced to sit down by Odiamar and his friends

(Pages 6-7, TSN, November 17, 1994).

Similarly, Cecille categorically declared that she was threatened by Florece with a gun

(Page 17, TSN, November 17, 1994).

The requirement of force and intimidation in the crime of rape are relative and must

be viewed in light of the victim‘s perspective and the offender‘s physical condition

(People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be

established in rape when intimidation is exercised upon the victim and the latter

submits herself against her will because of fear for life and personal safety. (People v.

Ramos, 245 SCRA 405 [1995])

In this case, Cecille was only fifteen (15) years old at the time of the incident in

question. At her age, it is reasonable to assume that a shot of gin rendered her

tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and

deprived of will or reason. The resulting weakness and dizziness which deprived

Cecille of reason, will and freedom must be viewed in light of her perception and

judgment at the time of the commission of the crime, and not by any hard and fast rule

because in ―rape cases, submission does not necessarily imply volition.‖ (Querido ,

229 SCRA 745 [1994])‖

It must likewise be taken into consideration that when Cecille went with the group of

accused-respondent, she was of the impression that it was just for a joy ride. The conclusion

made by the trial court that Cecille must have consented to the sexual act because she acquiesced

to go with them in the first place is, therefore, bereft of any legal or factual support, if not non

sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed

to the bestial acts later committed against her person.

Second, the lower court stated that ―force and violence in the offense of rape are relative

terms, depending on the age, size and strength of the parties and their relation to each

other.‖ The lower court enunciated this doctrine in finding that the alleged rape was actually a

consensual act since the prosecution was unable to show that complainant suffered any injury nor

show any evidence that her pants or blouse was torn. Neither was there any evidence that

accused-respondent exerted overpowering and overbearing moral influence over the offended

party.

This Court is of the impression that when the lower court invoked the above doctrine, it

readily concluded that complainant agreed to the sexual act disregarding testimonies lending

credence to complainant‘s allegation that she was threatened and intimidated as well as rendered

weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication,

thereby facilitating the commission of the crime. It was not imperative for the prosecution, in

order to prove the elements of force or intimidation to show that Cecille had broken limbs or that

her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless,

the prosecution still exerted efforts to corroborate Cecille‘s claim by presenting the examining

physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus

area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence.

In addition, the lower court doubted complainant‘s allegation that she was forced to smoke a

small cigarette, presumably marijuana, due to the fact that ―the prosecution failed to present any

portion of that so-called small cigarette much less did it present an expert witness to show that

inhaling of smoke from the said cigarette would cause the said offended party to suffer weakness

and dizziness.‖ Said ratiocination is trifling and unpersuasive. In fact, it is even misleading as

complainant categorically asserted that what made her weak and dizzy were the smoke of the

cigarette and the intoxicating effect of four shots of gin, not the inhalation of the smoke alone. In

any case, complainant could not be expected to produce that ―portion of that so-called small

cigarette.‖ Moreover, one does not need an expert witness to testify on what is common

knowledge - that four shots of gin have a ―weakening and dizzying‖ effect on the drinker,

especially one as young as the fifteen-year old complainant.

More disturbing than the above misapplication of criminal law doctrines is the lower court‘s

misinterpretation of the medical findings and deliberate withholding of some testimonies which

would have shown a very strong likelihood that complainant could indeed have been raped. The

following pieces of evidence cited in the summary of the assailed order are indications of

misleading findings:

First, the lower court did not lend any credence to the medical certificate issued after

complainant‘s physical examination. On the contrary, it interpreted it to mean that the offended

party is already experienced in sexual intercourse, after the examining physician had testified

that the hymenal lacerations might have been sustained a month, six months or even a year prior

to the examination. Interestingly, the lower court failed to mention that Dr. Decena also testified

that she cannot tell ―how old is an old hymenal laceration‖ because she cannot indicate when an

old laceration was inflicted and that from the size of the vagina she ―could not point the exact

cause.‖

This Court views this apparent lapse on the part of the lower court with concern and agrees

with petitioner, in accordance with well established jurisprudence, that proof of hymenal

laceration is not indispensable in indictments for rape as a broken hymen is not an essential

element of the crime. Further, in crimes against chastity, the medical examination of the victim‘s

genitalia is not an indispensable element for the successful prosecution of the crime. The

examination is merely corroborative in nature.[13] And contrary to the theory espoused by the

lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual

intercourse.

Second, the lower court highlighted the testimony of Dr. Decena to the effect that the

cigarette burns indicated that the lesions near complainant‘s umbilicus were due to skin

diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise

positively testified that the wounds could have been ―caused by cigarette butts as alleged by the

victim‖ which corroborates Cecille‘s testimony that respondent burned her ―right side of the

stomach‖ thrice.

It is thus indicative from the above observations that the lower court abused its discretion

and showed manifest bias in favor of accused-respondent in determining which circumstances

are to be considered in supporting its decision as to the guilt of accused-respondent. In this

regard, it must be remembered that the discretion to be exercised in granting or denying bail,

according to Basco v. Rapatalo[14] ―is not absolute nor beyond control. It must be sound, and

exercised within reasonable bounds. Judicial discretion, by its very nature, involves the exercise

of the judge‘s individual opinion. It is because of its very nature that the law has wisely

provided that its exercise be guided by well-known rules which, while allowing the judge

rational latitude for the operation of his own individual views, prevent them from getting out of

control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is

a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail

said: ‗But discretion when applied to a court of justice, means sound discretion guided by law. It

must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal

and regular.‘‖

The fact that vital prosecution evidence and testimonies have been irregularly disregarded

indicate that they have not been considered at all in arriving at the decision to grant bail. This

irregularity is even more pronounced with the misapplication of the two criminal law doctrines

cited to support the grant of the bail application. This Court cannot help but observe that the

lower court exerted painstaking efforts to show that the evidence of guilt of accused-respondent

is not strong by its non sequitur justifications, misleading or unsupported conclusions, irregular

disregard of vital prosecution evidence and strained interpretation, if not misinterpretation, of

criminal law doctrines.

It is the view of this Court that: (1) the testimony of Dr. Decena confirming complainant‘s

allegation that accused-respondent burned the right side of her stomach with cigarette butts, (2)

the testimony of Dr. Belmonte stating that complainant exhibited psychological manifestations

which are ―traceable to the rape incident‖, and (3) the unrebutted offer of compromise, are

indications of the strength of the evidence of guilt of accused-respondent.

Lending credence to petitioner‘s case is the fact that after the conduct of two (2) preliminary

investigations, ―no bail‖ was recommended in the information. According to Baylon v.

Sison,[15] such recommendation constitutes clear and strong evidence of guilt of the accused.

Aside from the apparent abuse of discretion in determining which circumstances and pieces

of evidence are to be considered, the lower court also did not strictly comply with jurisprudential

guidelines in the exercise of discretion. As reiterated in Carpio v. Maglalang,[16] discretion is

guided by: first, the applicable provisions of the Constitution and the statutes; second, by the

rules which this Court may promulgate; and third, by those principles of equity and justice that

are deemed to be part of the laws of the land.

The present Constitution, as previously adverted to, provides that in crimes punishable

by reclusion perpetua when evidence of guilt is strong, bail is not a matter of right. This Court

has reiterated this mandate in Section 7, Rule 14 of the Rules of Court. Recently, this Court laid

down the following rules in Basco v. Judge Rapatalo[17]which outlined the duties of a judge in

case an application for bail is filed:

―(1) Notify the prosecutor of the hearing of the application for bail or require him to

submit his recommendation;

(2) Conduct a hearing of the application for bail regardless of whether or not the

prosecution refuses to present evidence to show that the guilt of the accused is strong

for the purpose of enabling the court to exercise its discretion;

(3) Decide whether the evidence of guilt of the accused is strong based on the

summary of evidence of the prosecution; (Italics supplied)

(4) If the guilt of the accused is not strong, discharge the accused upon the approval

of the bailbond. Otherwise, petition should be denied.‖

Based on the above-cited procedure and requirements, after the hearing, the court‘s order

granting or refusing bail must contain a summary of the evidence for the prosecution.[18] A

summary is defined as ―a comprehensive and usually brief abstract or digest of a text or

statement.‖[19]

There are two corollary reasons for the summary. First, the summary of the evidence in the

order is an extension of the hearing proper, thus, a part of procedural due process wherein the

evidence presented during the prior hearing is formally recognized as having been presented and

most importantly, considered. The failure to include every piece of evidence in the summary

presented by the prosecution in their favor during the prior hearing would be tantamount to not

giving them the opportunity to be heard in said hearing, for the inference would be that they were

not considered at all in weighing the evidence of guilt. Such would be a denial of due process,

for due process means not only giving every contending party the opportunity to be heard but

also for the Court to consider every piece of evidence presented in their favor.[20] Second, the

summary of the evidence in the order is the basis for the judge‘s exercising his judicial

discretion. Only after weighing the pieces of evidence as contained in the summary will the

judge formulate his own conclusion as to whether the evidence of guilt against the accused is

strong based on his discretion.[21](Emphasis supplied)

Based on the above-stated reasons, the summary should necessarily be a complete

compilation or restatement of all the pieces of evidence presented during the hearing proper. The

lower court cannot exercise judicial discretion as to what pieces of evidence should be included

in the summary. While conceding that some prosecution evidence were enumerated, said

enumeration was incomplete. An incomplete enumeration or selective inclusion of pieces of

evidence for the prosecution in the order cannot be considered a summary, for a summary is

necessarily a reasonable recital of any evidence presented by the prosecution. A ―summary‖ that

is incomplete is not a summary at all. According to Borinaga v. Tamin,[22] the absence of a

summary in the order would make said order defective in form and substance. Corollarily, an

order containing an incomplete ―summary‖ would likewise be defective in form and substance

which cannot be sustained or be given a semblance of validity. In Carpio v. Maglalang,[23] said

order was considered defective and voidable. As such, the order granting or denying the

application for bail may be invalidated.[24]

WHEREFORE, in view of the foregoing, the decision dated August 1, 1997 and the

resolution dated December 22, 1997 in CA G.R. No. 42318 are REVERSED and the order dated

March 24, 1995 in Criminal Case No. T-1417 is declared void for having been issued in grave

abuse of discretion. The court a quo shall immediately issue a warrant for the rearrest of

Roderick Odiamar if his bail bond has been approved and thereafter, proceed with dispatch in the

disposition of said case. This resolution is immediately executory.

SO ORDERED.

ALMEDA V VILLALUZ

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA, petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, respondents.

Honorio Makalintal, Jr. for petitioner.

Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the

Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by

reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution

further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail.

Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance

of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the

option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court:

SEC. 14. Deposit of money as bail. — At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant.

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond.

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past

record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling

amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored.

Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process,

that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has

been duly notified and his failure to appear is unjustified."

With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9

It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction.

2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him.

Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto,

estafa orfalsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes

an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a

factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual

delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties,

not in a section defining offense. 13 A recidivist, upon the other hand, is one who, at the time of his trial for

one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion.

Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. 15

It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information.16

It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment.

ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the

attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

Makasiar, Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

COMENDADOR ET AL V DE VILLA

G.R. No. 93177 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.

No. 95020 August 2, 1991

B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents.

No. 96948 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents.

No. 97454 August 2, 1991

AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents.

Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza.

Manuel Q. Malvar for Rafael Galvez and Danny Lim.

Manuel E. Valenzuela for Arsenio Tecson

Mariano R. Santiago for Alfredo Oliveros.

Ricardo J.M. Rivera for Manuel Ison.

Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.

Alfredo Lazaro for Romelino Gojo.

Manuel A. Barcelona, Jr. for Jose Comendador.

Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.

Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.

Efren C. Moncupa for All Tecson.

M.M. Lazaro & Associates for respondents Ligot and Ison .

Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.

Salvador B. Britanico for Cesar de la Pena.

Gilbert R.T. Reyes for Danilo Pizarro.

Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.

The Solicitor General for respondents.

CRUZ, J.:p

These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408.

In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed oncertiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents.

In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020.

I

Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit:

You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS.

Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990.

In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990.

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides:

Art. 71. Charges Action upon. — Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such

investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits.

At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot.

On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court.

After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia:

(a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14.

Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpuson the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release.

II

The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial.

The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense.

Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights.

There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." We so held in Arula v. Espino, 1 thus:

xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction.

The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said:

We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.

xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this

holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general court-martial jurisdiction

A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings.

As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2 where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911.

The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads:

Art. 8. General Courts-Martial. — The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ...

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General.

Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit:

Art. 18. Challenges. — Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause.

On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them.

On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus:

No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree.

On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein.

P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically.

It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime.

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers.

The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve.

The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings.

The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of

Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals.

It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts.

In Martelino, we observed as follows:

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion — what in the language of Rule 65 is referred to as "grave abuse of discretion" — as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions forhabeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction.

We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system.

xxx xxx xxx

National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice.

The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus:

... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff.

While accepting this explanation, the Court nevertheless must reiterate the following admonition:

This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. 6

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet

become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991.

III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula:

The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ ofcertiorari.

As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released.

ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

SUNGA V JUDGE SALUD

A.M. Matter. No. 2205-MJ November 19, 1981

BUENAVENTURA B. SUNGA, complainant, vs. JUDGE CONCEPCION SALUD, Municipal Circuit Court, Amulong Iguig Cagayan, respondent.

R E S O L U T I O N

FERNANDO, C.J.:

It was the imposition of a bail bond in the amount of P18,000.00 for the alleged violation of Presidential Decree No. 583, the penalty for which is prision mayor or a fine ranging from P5,000.00 to P10,000.00 or both, that led to a verified letter-complaint from Buenaventura B. Sunga for grave abuse of authority or, at the very least, ignorance of the law. Complainant was accused in a criminal case for unlawful ejectment. Upon being required to comment, respondent Judge denied such accusation and maintained that considering the penalty of prision mayor, the bail bond which he fixed at P18,000.00 could not be considered excessive. The matter was then referred to Executive Judge Bonifacio Cacdac, Jr. of the

Court of First Instance of Cagayan, Branch V at Tuguegarao, for investigation, report and recommendation. He conducted such investigation. In his report, based primarily on a motion to dismiss filed by the complainant himself manifesting lack of interest, he recommended the dismissal of the complaint. He likewise could not find any justification for the charge of excessive bail. Court Administrator Justice Lorenzo Relova, agreeing with the recommendation of Deputy Court Administrator Romeo Mendoza, submitted to the Court his report "that respondent Judge Concepcion Salud be found guilty of grave abuse of authority for which he should be fined equivalent to one (1) month salary, not chargeable to his leave credits and warned that a repetition of such infraction in the future will be dealt with more severely." 1

This Court pursuant to the mandate that excessive bail should not be required feels that a more severe penalty should be imposed. 2 The members of the Judiciary were reminded in Circular No. 1, 3 dealing with the fixing of the bail bond in criminal cases, of the authoritative doctrine in Villasenor v. Abano. 4 The following factors are to be considered:" 1. Ability of the accused to give bail; 2. Nature of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Health of the accused; 6. Character and strength of the evidence; 7. Probability of the accused appearing in trial. 8. Forfeiture of the other bonds; 9. Whether the accused was a fugitive from justice when arrested; and 10. If the accused is under bond for appearance at trial in other cases." 5This Court, in the later case of De la Camara vs. Enage 6 was equally explicit on the matter. Thus: "Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, 'the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is excessive under the Eighth Amendment. 7 It should be stressed, contrary to the thinking of Executive Judge Cacdac, that the mere assertion of lack of interest to prosecute is not automatically followed by the matter being considered closed.

WHEREFORE, respondent Judge is fined equivalent to two (2) months salary, not chargeable to his leave credits. He is warned that a repetition of a failure to apply constitutional provisions would result in a much more severe penalty. Let a copy of this resolution be spread on his record.

Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

MANOTOC V CA

G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command (AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds no officer-position in said business, but acts as president of the former corporation.

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner, who was then in the United States, came home, and together with his co-stockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed.

Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." 1 The prosecution opposed said motion and after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982, reads:

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that his trip is ... relative to his business transactions and opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future until these two (2) cases are terminated .

2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might claim that they could no longer be held liable in their undertakings because it was the Court which allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the accused fail or decide not to return.

WHEREFORE, the motion of the accused is DENIED. 3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure.

On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the obtention of foreign investment in Manotoc Securities, Inc." 8 He attached the letter dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller 9 requesting his presence in the United States to "meet the people and companies who would be involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the ground that after verification of the records of the Securities and Exchange Commission ... (he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of dismissing the cases before him, ordered merely the informations amended so as to delete the allegation that petitioner was president and to substitute that he was "controlling/majority stockholder,'' 11 of Manotoc Securities, Inc. On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente lite. 12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him.

13

The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935).

... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state.

14

If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the appellants are in the territorial confines of the Philippines and not demandable if the appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the reason suggested by the appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail

bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment:

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's absence from the United States would absolutely preclude him from taking advantage of business opportunities therein, nor is there any showing that petitioner's non-presence in the United States would cause him irreparable damage or prejudice.

15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no gainful purpose will be served in discussing the other issues raised by petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.

Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Feria, J., took no part.