Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 93335 September 13, 1990

JUAN PONCE ENRILE, petitioner,  vs.HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of Makati. The second information reads:

That on or about the 1st day of December 1989, at Dasmariñas Village, Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously, willfully and knowingly obstruct, impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the information from the record.

On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829."

On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the grounds that:

(a) The facts charged do not constitute an offense;

(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and

(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting

on December 1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829.

On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990.

The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds, to wit:

I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989;

III. The orderly administration of Justice requires that there be only one prosecution for all the component acts of rebellion;

IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No. 1829;

V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.

The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829 notwithstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed against the petitioner on the theory that the former involves a special law while the latter is based on the Revised Penal Code or a general law.

The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing proscription against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a procedure reprobated in the Hernandez case. This Court recently declared:

The rejection of both options shapes and determines the primary ruling of the Court, which thatHernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means to

its commission or as an unintended effect of an activity that commutes rebellion . (Emphasis supplied)

This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a constitutive or component element or committed in furtherance of rebellion.

The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states:

SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

xxx xxx xxx

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction.

xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday party held at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that:

In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied)

As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan

and 100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent.

The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held in People v. Hernandez, supra:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. (p. 536)

The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v. Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:

In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes Identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides. Just as one can not be punished for possessing opium in a prosecution for smoking the Identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of treason.

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not bar a prosecution under the other. This argument is specious in rebellion cases.

In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate crimes in themselves. Thus:

This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either

separately therefrom or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p. 528)

The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes of rebellion and violation of PD No. 1829.

Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with Honasan was committed in connection with or in furtherance of rebellion and must now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses, and assume the political complexion of the main crime of which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty. (People v. Hernandez, supra, p. 541)

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled:

An examination of the record, however, discloses that the crime with which the accused is charged in the present case which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of rebellion with which the same accused is charged with other persons in a separate case and wherein he pleaded guilty and was convicted. (at page 662)

xxx xxx xxx

[T]he conclusion is inescapable that the crime with which the accused is charged in the present case is already absorbed in the rebellion case and so to press it further now would be to place him in double jeopardy. (at page 663)

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however, clarified, to wit:

... in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case.

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the petitioner.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings therein is made permanent.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and Regalado, JJ., concur. Medialdea, J., took no part. Fernan, C.J. and Paras, J., are on leave.

Footnotes

1 Recently made the subject of a similar petition for certiorari and modified by the Supreme Court into an information for the simple crime of rebellion in G.R. Nos. 92163 & 92164, June 5,1990.

2 The doctrine relied upon was set down in treason cases but is applicable to rebellion cases. As Justice McDonough opined rebellion is treason of less magnitude (U.S. v. Lagnoasan, 3 Phil. 472, 484, 1904).

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 92163 June 5, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs.JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.

G.R. No. 92164 June 5, 1990

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs.PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.

 

NARVASA, J.:

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to

and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been:

(a) held to answer for criminal offense which does not exist in the statute books;

(b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process;

(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. 4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is putting it very simply-the information in Hernandezcharged murders and other common crimes committed as a necessary means for the commission of rebellion,whereas the information against Sen. Enrile et al. charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandezruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply.

The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios.

The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163.

The parties' oral and written pleas presented the Court with the following options:

(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings;

(b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less grave character;

(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralizeHernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case:

There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying

circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.

Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro:

La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)

We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading:

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.

En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando separadamente los delitos.

Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime

independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12

The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken.

The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:

In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13

The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion.

Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation.

It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personallydetermining the existence of probable cause by examining under oath or

affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandezas applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18

There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court.

There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this Court, from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail.

Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco and Regalado, JJ., concur.

Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.

Cortes and Griño-Aquino, JJ., are on leave.

 

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ ofHabeas Corpus has served its purpose.

 

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the

highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.

In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.

 

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-

retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof,

either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of

rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently, habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.

 

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4

At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on

the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition thatthe crime of rebellion complexed with murder, and multiple frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information isfatally defective, even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and properinformation, for this entire exercise to merit the serious consideration of the courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs. 

Footnotes

2 People vs. Lava, 28 SCRA 72 (1956); People vs. Geronimo, 100 Phil. 90 (1956); People vs. Romagosa, 103 Phil. 20 (1958); and People vs. Rodriguez, 107 Phil. 659 (1960).

8 Rollo, G.R. No. 92163, pp. 407-411.

9 Fernan, C.J., and Narvasa, Cortes and Grino-Aquino, JJ.

10 Fernan, C.J. and Narvasa, J.

Melencio-Herrera, J., Opinion

1 "ART. 142-A-Cases where other offenses are committed.-When by reason or on the occasion of any of the crimes penalized in this Chapter, acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC 

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs.FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs.HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs.BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO,respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs.BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs.THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

R E S O L U T I O N

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule — as many misunderstood it to do — that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing lawsto the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people — not the Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of  habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for

subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be

mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the

motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged

perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

 

Separate Opinions

 

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the, majority's resolution on said motions for reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu mav not be considered as having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of government offices trie assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed. "connotes immediacy in point of time and excludes

cases under the old rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer's personal knowledge such subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should "clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could stand judicial scrutiny — to pinpoint a subversive, police officers usually have to make long persistent surveillance. However, for the orderly administration of government and the maintenance of peace and order in the country, good faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable both administratively and criminally for abuses in the

performance of their duties. Victims of abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.

xxx xxx xxx

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ

when applied to actual cases. I doubt if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully anfd freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term "inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the continuing offenses of rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted with approval in the originalponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these — in our country — are whose embodied in the Bill of Rights, particularly those

guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders — or combatants — is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside front their essentially involving a massive conspiracy of nationwide manitude. (Emphasis supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed, he may at any time be arrested without warrant on the specious pretext that he is in the process of committing the "continuing offense," no matter that what he may be actuallly doing at the time is a perfectly innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on "confidential information" that he was in the hospital, which information "was found to be true." This is supposed to have validated the determination of the officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as

having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed.

I am also uneasy over the following observations in the present resolution which I hope will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon wmch the arresting officers based their arrests without warrant, are supported by probable cause, i.e., that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may have been influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by the majority principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III Section 2 of the Constitution reads:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113 follows:

Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined

while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception. 1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court. these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)

held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable. 4

In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: 1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to have been committed "in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by another person, no matter what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled the ground, he has  personal knowledge of facts which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the requirement in Section 5(a) that the crime must have been committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by examining the evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense "has in fact just been presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which

compels the repetition of the same acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained. (Emphasis supplied)

9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, doesnot dispence with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense taken place within the territorial jurisdiction of one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by reason of he very nature of the offense committed" the violation of the law is deemed to be "continuing," then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be

committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" 13

a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such association or organization in any form whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

xxx xxx xxx

f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization;

xxx xxx xxx

k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization;

xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has personal knowledge of the facts indicating that the arrestee is responsible for an offense which has just been committed.

Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer

acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the reasons above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and that the military did have personal knowledge that he had committed it. "Personal knowledge," according to the majority, is supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is supposedly reasonable:

. . . when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilty of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force,

deceit, and other illegal means and place the country under the control and domination of a foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge means exactly what it says — that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground" — which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . ." 8 I do not see how We can act differently here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse, because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169, hospital establishments are required to report cases of acts of violence to "government health authorities" — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere tip-the military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediate arrests were "prudent" and necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the petitioner's arrests.

More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.14

And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the accused.

First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question I do not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the very question before the Court—whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue: "But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day" "soon thereafter". Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because it is supported by no authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we were talking of "simple" arrests.

I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory construction in general), and I feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the military should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges 24 — today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye II" 25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative measure" alone—we are talking ofarrests, of depriving people of liberty—even if we are not yet talking of

whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance of the petitioners' predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the military's action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see how this court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels." 28 First and foremost, and as the majority has conceded, we do not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old hat — the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law — that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to offer a small consolation, when after all, this Court is validating their continued detention. 30 With all due respect, I submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The State has no right to bother citizens without infringing their right against arbitrary State action. "The right of the people," states the Constitution, "to be secure in their persons, houses, papers, and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person and guarantees full respect for human rights." 32 The Constitution states the general rule — the majority would make the exception the rule, and the rule the exception. With all due respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the "actual facts and circumstances" being no more than "confidential information"

(manufactured or genuine, we have no way of telling) and in the second place, any information with which the military (or police) were armed could no more than be hearsay, not personal, information. I submit that the "actual facts and circumstances" the majority insists on can not justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless because the police supposedly "found out only later." I submit that the majority has read into Section 5(b) a provision that has not been written there.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is important is that the Court be right." 33

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of whether or not this Court, in approving the military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by the military since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.

Motions denied.

# Footnotes

1 G.R. No. 61388, April 20,1983,121 SCRA 472.

2 G.R. No. 70748, October 21,1985,139 SCRA 349.

3 Section 1, Rule 102: "To what habeas corpus extends. — Except otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

4 Villavicencio vs. Lukban, 39 Phil. 778.

5 Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349.

6 Sayo vs. Chief of Police, 80 Phil. 859 (1948).

7 Republic Act No. 1700 known as the "Anti-Subversion Act" titled "An Act to outlaw the CPP and similar associations, penalize membership therein and for other purposes." (1957); and the subsequent related decrees such as Presidential Decree No. 885, entitled "Outlawing subversive organizations, penalizing membership therein, and for other purposes." (1976); and Presidential Decree No. 1835 entitled "Codifying the various laws on anti-subversion and increasing the penalties for membership in subversive organizations."

8 G.R. No. 61388. April 20,1983,121 SCRA 472.

9 US vs. Santos, 36 Phil. 851 (1917).

10 Ibid.

11 Ibid.

12 Records of G.R. No. 81567, affidavit dated 4 February 1988.

13 Rollo, pp. 311-312 (G.R. No. 81567).

14 Presidential Decree No. 169 requires attending physicians and/or persons treating injuries from any form of violence, to report such fact to the Philippine Constabulary and prescribing penalties for any violation thereof.

15 Decision dated 9 July 1990, pp. 19-20.

22 Ibid: "The legality of the detention does not depend upon the fact of the crime, but . . . upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at that

moment leaves the decision for the urgent purpose of suspending the liberty of the citizen.

"In People vs. Ancheta, it was held that "the legality of detention made by a person in authority or an agent thereof ... does not depend upon the juridical and much less the judicial fact of crime which, at the time of its commission, is not and cannot definitively be determined for the lack of necessary data and for jurisdiction but upon the nature of the deed. . . . ."

23 United States vs. Santos, supra.

24 Ibid.

25 Article 124 of the Revised Penal Code provides:

"ART. 124. Arbitrary detention. — Any public officer or employee who, without legal grounds. detains a person, shall suffer:

1. The penalty of arresto mayor in its maximum period to prision correccional in its maximum period, if the detention has not exceeded threedays. . . .

26 Damages for the impairment of rights and liberties of another person.

7 See e.g., U.S. vs. Samonte, 16 Phil. 516 (1910).

8 In People vs. Aminnudin, 163 SCRA 402 (1988), the Court, in nullifying a warrantless arrest, said, through Mr. Justice Cruz:

"In the many cases where tills Court has sustained the warrantless arrest of violators on the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him." (163 SCRA at 409-410) (emphasis supplied)

9 People vs. Burgos, 114 SCRA 1 (1986).

10 121 SCRA 472 (1983).

11 Parulan vs. Director of Prisons, 22 SCRA 638 (1968); U.S. vs. Cunanan, 26 Phil. 376 (1913); U.S. vs. Santiago, 27 Phil. 408 (1914); U.S. vs. Laureaga, 2 Phil. 71 (1903).

12 E.g. People vs. Zapanta and Bondoc, 88 Phil. 688 (1951) where the Court held that each instance of sexual intercourse constitute a separate crime of adultery, though the same persons and the same offended spouse are involved, and that a second information may be filed against the same accused for later acts of sexual intercourse.

13 Section 6, P.D. 1835, 16 January 1981.

2 Supra; emphasis in the original.

3 The majority cites Presidential Decrees Nos. 885 and 1835 and "related decrees;" both Presidential Decrees Nos. 885 and 1835 have been repealed by Executive Order No. 167, as amended by Executive Order No. 267.

4 Please note that under Section 6 of Presidential Decree No. 1835, "[t]the following acts shall constitute prima facie evidence of membership in any subversive organization: (a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; (b) Subjecting himself to the discipline of such association or organization in any form whatsoever; (c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; (d) Executing orders, plans, or directives of any kind of such association or organization; (e) Acting as an agent, courier, messenger, correspondent, organizer, or in any other capacity, on behalf of such association or organization; (f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; (g) Transmitting orders, directives, or plans of such association or organization orally or in writing or any other means of communication such as by signal, semaphore, sign or code; (h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; (i) Mailing, shipping, circulating, distributing, or delivering to other persons any material or propaganda of any kind on behalf of such association or organization; (j) Advising, counselling, or in other way giving instruction, information, suggestions, or recommendations to officers, or members or to any other person to further the objectives of such association or organization; and (k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization." Please note that none of these are alleged by the military in this case, assuming that the Decree still exists.

5 Nos. L-32613-14, December 27, 1972, 48 SCRA 382; emphasis supplied. In Taruc vs. Ericta (No. L-34856, Nov. 29, 1989, 168 SCRA 63, 66-67), I held that People vs. Ferrer is no longer a good basis for sustaining the Anti-Subversion Act. I am not here invoking Ferrer to sustain it, but to discuss its elaboration of the provisions of Republic Act No. 1700.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4974               May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JOSE LAVA, ET AL., defendants-appellees.

-----------------------------

G.R. No. L-4975               May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.LAMBERTO MAGBOO, ET AL., defendants-appellants.

-----------------------------

G.R. No. L-4976               May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.SIMEON G. RODRIGUEZ, ET AL., defendants-appellees.

-----------------------------

G.R. No. L-4977               May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.HONOFRE MANGILA, ET AL., defendants-appellants.

-----------------------------

G.R. No. L-4978               May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MAGNO PONTILLERA BUENO, ET AL., defendants-appellees.

Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Jorge Coquia for plaintiff-appellee.Recto Law Office, Juan T. David, Crispin D. Baizas and Delgado, Flores, Macapagal and Dizon for defendant-appellant Jose Lava.Cipriano C. Manansala for defendants-appellants Federico Maclang, Lamberto Magboo,

Honofre D. Magila, Marcos Medina, Cenon Bungay and Magno P. Bueno.R. M. Paterno for defendants-appellants Marciano de Leon and Cesareo Torres.Irineo M. Cabrera for defendant-appellant Iluminada Calonje.Salonga, Ordoñez and Associates for defendants-appellants Angel Baking and Arturo Baking.Jose P. Laurel Law Office for defendant-appellant Simeon Rodriguez.J. Antonio Araneta, Claudio Teehankee and Manuel O. Chan for defendant-appellant Federico Bautista.Ismael T. Torres for defendant-appellant Felipe Engreso.Meliton Soliman for defendant-appellant Nicanor Razon, Sr.

ZALDIVAR, J.:

          These are appeals from the joint decision of the Court of First Instance of Manila in its Criminal Cases Nos. 14071, 14082, 14270, 14315 and 14344.

          In Criminal Case No. 14071, the defendants were Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz y Adriano, Rosario C. viuda de Santos and Angel Baking. The appeal from the decision in this case is now in G.R. No. L-4974 before this Court.

          In Criminal Case No. 14082, the defendants were Lamberto Magboo, Nicanor Razon, Sr., Esteban Gonzales y la Torre, Marcos Medina, Cesario Torres, Rosenda Canlas Reyes, and Arturo Baking y Calma. The appeal from the decision in this case is now in G.R. No. L-4975 before this Court.

          In Criminal Case No. 14270, the defendants were Simeon Gutierrez y Rodriguez, Julita Rodriguez y Gutierrez, and Victorina Rodriguez y Gutierrez, and Marciano de Leon. The appeal from the decision in this case is now in G.R. No. L-4976 before this Court.

          In Criminal Case No. 14315, the defendants were Honofre D. Mangila and Cenon Bungay y Bagtas. The appeal from the decision in this case is now in G.R. No. L-4977 before this Court.

          In Criminal Case No. 14344 the defendants were Magno Pontillera Bueno, Nicanor Capalad, Rosalina Quizon, Pedro Vicencio, Julia Mesina, Felipe Engreso, Elpidio Acuño Adime, Josefina Adelan y Abusejo, Conrado Domingo, Aurora Garcia, and Naty Cruz. The appeal from the decision in this case is now in G.R. No. L-4978 before this Court.

          All the above-named defendants were charged with having committed the complex crime of rebellion with murders and arsons under an identical information, filed in each of the five cases, which reads as follows: .

          That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the City of Manila, the seat of the Government of the Republic of the Philippines which the herein accused have intended to overthrow, and the place they have chosen for that purpose as the nerve center of all their rebellious activities in the different parts of the country, the said accused being then high ranking officers or otherwise members of the Communist Party of the Philippines (PKP) of which the "Hukbong Mapagpalaya ng Bayan" (HMB) otherwise or formerly known as the Hukbalahap (Huks), is its armed forces, having come to an agreement and decided to commit the crime of rebellion, and therefore, conspiring and confederating together, acting with many more others whose whereabouts and identities are still unknown up to the filing of this information, and

helping one another, did then and there willfully, unlawfully, and feloniously promote, maintain, cause, direct and/or command the Hukbong Mapagpalaya ng Bayan (HMB) or the Hukbalahaps (Huks) to rise publicly and take arms against the Government or otherwise participate therein for the purpose of overthrowing the same, as in fact the said Hukbong Mapagpalaya ng Bayan or Hukbalahaps (Huks) have risen publicly and taken arms against the Government, by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and there committing wanton acts of murder, spoilage, looting, arson, planned destruction of private and public buildings, to create and spread terrorism in order to facilitate the accomplishment of the aforesaid purpose, as follows, to wit:

(1) On May 6, 1946, the 10th MPC Co. led by First Lt. Mamerto Lorenzo while on patrol duty in the barrio of Santa Monica, Aliaga, Nueva Ecija, was with evident premeditation on the part of the huks ambushed and treacherously attacked by a band of well-armed dissidents or rebels. Ten enlisted men of the MP company were killed. First Lt. Mamerto Lorenzo was captured and beheaded by the rebels.

(2) On August 6, 1946, a group of more than 30 Huks under the leadership of Salvador Nolasco armed with guns of different calibers raided the municipal building of Majayjay, Laguna. They were able to get one Garand, one carbine, one Thompson GMG, and one pistol. They also took one typewriter and stationery (NR Laguna, dated Sept. 2, 1946).

(3) On April 10, 1947, 14 EM under the command of Lt. Pablo C. Cruz, while on their way to investigate a holdup in the barrio of San Miguel na Munti, Talavera, Nueva Ecija were with evident premeditation and treachery on the part of the Huks ambushed and fired upon by Huks armed with 30-caliber rifles, machine guns, and grenades. Lt. Pablo Cruz and Pvt. Santiago Mercado were killed and 6 others were wounded.

(4) On May 9, 1947, Huks numbering around 100 under Lomboy and Liwayway raided the town proper of Laur and forced Municipal Treasurer Jose A. Viloria to open the treasury safe and obtained therefrom more than P600. Policeman Fermin Sanchez was taken by the bandits with one Springfield rifle. Bandits robbed the towns people of their money, personal belongings, rice and carabaos (WITR May 10, 1947). .

(5) On August 19, 1947, Capt. Jose Gamboa, First Lt. Celestino Tiansec, and Second Lt. Marciano Lising, all from the 115th Co., while riding in a jeep following an armored car, were treacherously fired upon by a group of about 100 dissidents armed with automatic rifles, Thompsons, and Garands and lined up on both sides of Highway No. 5 near the cemetery of San Miguel, Bulacan. First Lt. Celestino Tiansec and Second Lt. Marciano Lising were killed.

(6) In or about the month of June, 1946, Alejandro Viernes, alias Stalin, commander of Joint Forces No. 108 with about 180 men, entered the town of Pantabangan, Nueva Ecija, and raised their Huk flag for more than twenty-four hours. The Municipal officials did not offer any resistance because of the superiority in number of the Huks. After demanding from the civilians foodstuffs such as rice, chickens, goats, and carabaos, they left the town, admonishing the civilians always to support the Huk organization. The MP forces under Capt. Ponciano Hanili, S-3, Capt. Federico C. Olares, then Asst. S-3, of Nueva Ecija province, proceeded to Pantabangan with forces of the 112th MP Co. under

Capt. Nicanor Garcia, to verify the information, but were not able to contact the dissidents at Pantabangan. They proceeded to the barrio of Marikit, between Pantabangan and Laur, where they engaged some dissidents. When our forces were on their way home, they were pocketed by the dissidents at the zigzag road, but owing to the initiative of our forces, they were able to extricate themselves from their precarious position and were able to fire their mortars and Cal. 50 and .30 machineguns. Investigations made on the field of battle showed that the Huks suffered heavy casualties which was verified later to have been seven cart loads of dead men. (Special Report, PC Nueva Ecija, dated February 23, 1948.)

(7) Mrs. Aurora Aragon Quezon and party were with evident premeditation and treachery on the part of the Huks ambushed at about 10:30, 28 April 49 by an undetermined number of dissidents under Commanders Viernes, Marzan, Lupo and Mulong at kilometer 62, barrio Salubsob, Bongabong, Nueva Ecija. PC escort exchanged fire with the dissidents. Patrol of the First Heavy Weapons Company, 1st PC Battalion was dispatched to reinforce the PC escort. The following persons were killed: Mrs. Quezon, Baby Quezon, Mayor P. Bernardo, Major P. San Agustin, A. San Agustin, Lt. Lasam, Philip Buencamino III, and several soldiers. General Jalandoni and Capt. Manalang sustained slight wounds.

(8) On August 25, 1950, Camp Macabulos, Tarlac, Tarlac was attacked, raided and set fire to and among the casualties therein were Major D. E. Orlino, Capt. T. D. Cruz, Lt. G. T. Manawis, Lt. C. N. Tan, Lt. Eusebio Cabute, Sgt. Isabelo Vargas, Sgt. Bernardo Cadoy, Sgt. Bienvenido Bugay, Sgt. Samuel Lopez, Cpl. Vicente Awitan, Cpl. Ruiz Ponce, Cpl. Eugenio Ruelra, Pvt. Agustin Balatbat, Saturnino Guarin, E. Cabanban, Antonio Monte, Felix Quirin, Gregoria Balcoco, Jose Mojica, Cornelio Melegan, Carlos Bojade, Rodrigo Espejo and Rosario Sotto, a Red Cross nurse.

          Counsel for defendants Jose Lava and Federico Bautista filed a motion to quash the information against them upon the grounds that the information did not conform to the prescribed form, that it charged the defendants with more than one offense, and that the court had no jurisdiction over the offense charged. Also filed was a petition for provisional liberty under bail of 14 of the defendants, upon the grounds that (1) the evidence of guilt was not strong and (2) the suspension of the writ of habeas corpus under Proclamation No. 210, dated October 22, 1950, by the President of the Philippines was unconstitutional. Both motion and petition were denied by the trial court in an order dated November 1, 1950.

          Upon agreement of the prosecution and the defense, and with the conformity of all the defendants, the five cases were tried jointly, with the understanding that each defendant could present his/her separate and independent defenses. Notwithstanding the fact that several witnesses had already testified in the first two cases (Criminal Cases Nos. 14071 and 14082) at the time the other three cases (Criminal Cases Nos. 14270, 14315 and 14344) were filed, the defendants in the latter three cases expressed their conformity to a joint trial with the first two cases and agreed that the evidence already taken in the first two cases be reproduced in the latter three cases.

          While the joint trial was being held, the prosecution, after a reinvestigation of the cases, moved that the case with respect to defendant Julia Mesina be dismissed upon the ground of insufficiency of evidence. After the trial and before the cases were submitted for decision, the prosecution also moved for the dismissal of the case against defendant Rosenda Canlas Reyes

upon the ground that the evidence on record was not sufficient to support her conviction. Both motions were granted by the trial court.

          After the joint trial, the trial court rendered a joint decision in the five cases, dated May 11, 1951.

          In Criminal Case No. 14071, the court found defendants FEDERICO MACLANG alias Eto alias O. Beriaalias Olibas alias Mariano Cruz alias Ambrosio Reyes alias Manuel Santos; RAMON ESPIRITU alias Johnnyalias Ka Johnny; ILUMINADA CALONJE alias Salome Cruz alias Luming; JOSE LAVA alias Harry alias Felix Cruz alias Gaston Silayan alias Gaston alias Gregorio Santayana alias Greg alias Gavino; FEDERICO M. BAUTISTA alias Freddie alias Fred; ANGEL BAKING alias Angel alias Boriz alias Bayan; and ROSARIO VDA. DE SANTOS alias Charing, guilty as principals of the complex crime of rebellion with multiple murder, arsons, and robberies, and pursuant to Article 248, subsections 1 and 3 of the Revised Penal Code, in connection with its Article 48, sentenced defendants Federico Maclang, Ramon Espiritu and Iluminada Calonje to the capital penalty of death; and defendants Jose Lava, Federico M. Bautista, Angel Baking, and Rosario C. Vda de Santos toreclusion perpetua. The defendants were also ordered to pay the costs in this case.

          In imposing the death penalty upon Federico Maclang, Ramon Espiritu and Iluminada Calonje, the court took into consideration not only the very nature of the crime committed but also the aggravating circumstance that the said three defendants secured the aid of persons under 15 years of age in the commission of the crime.

          In Criminal Case No. 14082, the court found defendants CESAREO TORRES alias Cesareo Yacat, aliasLeo alias Leodones; ARTURO BAKING Y CALMA alias Arturo C. Baking alias A. C. Baking alias Arturo Calma Baking alias Eduardo Santos, and MARCOS MEDINA alias Hiwara guilty as principals of the complex crime of rebellion with multiple murder, arsons, and robberies and sentenced the said defendants to reclusion perpetua. The court also found defendants LAMBERTO MAGBOO alias Berting alias Eddie and NICANOR RAZON, SR.,alias Elias Ruvi, as accomplice in the commission of the said crime and were sentenced to an indeterminate prison term of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum.

          The court did not find sufficient evidence to establish the guilt of the defendant ESTEBAN GONZALES Y LA TORRE, alias Esteban La Torre Gonzales, either as principal or accomplice in the commission of the said crime. The court, however, found him guilty as member of the Communist Party in the Philippines, which is an illegal association, and pursuant to Article 147 of the Revised Penal Code, the said defendant was sentenced to four (4) months of arresto mayor. All the defendants were ordered to pay costs.

          In Criminal Case No. 14270, the court found defendants SIMEON GUTIERREZ Y RODRIGUEZ aliasSimeon Rodriguez alias Sammy alias S. G. R. alias Lakindanum; MARClANO DE LEON Y ESPIRITU aliasMarciano E. de Leon alias Marcial alias Mar, guilty as principals in the commission of the complex crime of rebellion with multiple murder, arsons, and robberies; and JULITA RODRIGUEZ Y GUTIERREZ alias Judith aliasJuling alias Juliet alias Julie, as accomplice in the commission of the said crime, and sentenced defendants Simeon Gutierrez y Rodriguez, and Marciano de

Leon y Espiritu to reclusion perpetua; and defendant Julita Rodriguez y Gutierrez to an indeterminate prison term of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum. These defendants were ordered to pay the costs.

          The court acquitted defendant VICTORINA RODRIGUEZ Y GUTIERREZ alias Vicky alias Toring.

          In Criminal Case No. 14315, the court found defendants CENON BUNGAY Y BAGTAS alias Ruping aliasCommander Ruping alias Bagtas and HONOFRE D. MANGILA alias Onofre Mangila alias Tommy alias Miller guilty as principals of the complex crime of rebellion with multiple murder, arsons and robberies, and pursuant to the provision of Article 48 of the Revised Penal Code the said defendant Cenon Bungay y Bagtas and Honofre D. Mangila were sentenced to death. In arriving at this decision the court took into consideration the gravity of their participation in the said complex crime, the first being a Huk squadron commander, who led and took part in several raids and ambuscades conducted by the HMB and caused the killing of Major Leopoldo Alicbusan of the PC Detachment at San Pablo City, Laguna, and the second (Mangila) being a member of the powerful Central Committee of the Communist Party in the Philippines, which elects the Politburo members. The said defendants were also ordered to pay the costs.

          In Criminal Case No. 14344, the court found defendant MAGNO PONTILLERA BUENO alias Magno Bueno alias Mamerto Banyaga alias Narding, guilty as principal of the complex crime of rebellion with multiple murder, arsons, and robberies and sentenced the said defendant to death. The court, likewise found defendants ROSALINA V. QUIZON alias Regina Quiambao; PEDRO VICENCIO alias Pedring; FELIPE ENGRESO alias Ipe; JOSEFINO ADELAN Y ABUSEJO alias Fely; ELPIDIO ACUÑO ADIME alias Rolly, alias Rolly Enriquez alias Rolalias Pidiong, and NATY CRUZ alias Natie alias Naty alias Spring, and CONRADO DOMINGO alias Adong guilty beyond reasonable doubt as accomplices in the commission of the said crime and sentenced the said Rosalina Quizon and Pedro Vicencio to an indeterminate penalty of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum; and Felipe Engreso, Josefina Adelan and Conrado Domingo to an indeterminate prison term of four (4) years of prision correccional as minimum to ten (10) years ofprision mayor as maximum. The last three accused were declared entitled to the privileged mitigating circumstance of minority, they being under 18 years of age.

          With respect to defendants Elpidio Acuño Adime and Naty Cruz, they being under 16 years of age, further proceedings were suspended and pursuant to the provision of Article 80 of the Revised Penal Code, the court ordered that the said Elpidio Acuño Adime be committed to the Boys' Training School and Naty Cruz to the Girls' Training School at Mandaluyong, Rizal under the custody and supervision of the Commissioner of Social Welfare or his authorized representatives until they reach the age of majority or until further orders of the court. The Commissioner of Social Welfare was directed to submit to the court every four months a written report on the good or bad conduct of the said minors, on the moral and intellectual progress made by them during the period of their confinement in said institutions.

          The court acquitted defendants NICANOR CAPALAD alias Canor and AURORA GARCIA alias Laring.

          All the defendants except Nicanor Capalad and Aurora Garcia were ordered to pay the costs.

          In imposing the capital penalty on Magno Pontillera Bueno the Court took into account not only his being a member of the powerful Central Committee of the Communist Party jointly with Federico Maclang and Honofre Mangila but also his being an instructor on Military Tactics in the "Stalin University", the military training school for Huks in the mountains.

          The rights to file a civil action to recover indemnity for the death of the victims of the murders specifically referred to in these cases were reserved to the heirs of the said victims.

          Thus, of the original 31 defendants in these five criminal cases, five were acquitted, namely: Julia Mesina, Rosenda Canlas Reyes, Victorina Rodriguez y Gutierrez, Nicanor Capalad and Aurora Garcia. Of the 26 who were convicted, all appealed to this Court except defendant Esteban Gonzales la Torre. Later, defendants Rosalina Quizon, Elpidio Acuño Adime, Josefina Adelan Abusejo, Conrado Domingo and Naty Cruz withdrew their appeal. During the pendency of the appeal, defendants Julita Rodriguez y Gutierrez and Magno Pontillera Bueno died. The appeals now before this Court, therefore, involve only 18 defendants, namely: Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz, Rosario Vda. de Santos, Angel Baking, Lamberto Magboo, Nicanor Razon, Marcos Medina, Cesareo Torres, Arturo Baking, Simeon G. Rodriguez, Marciano de Leon, Honofre Mangila, Cenon Bungay, Pedro Vicencio, and Felipe Engreso.

          Upon petition by the Deputy Chief, Military Intelligence Service (MIS) of the Armed Forces of the Philippines, this Court, by order of March 7, 1952, appointed the MIS the custodian of the exhibits and documents that were presented as evidence in these five criminal cases before the trial court. This step was taken because those documents and exhibits were needed also as evidence in other courts in the prosecution of other members of the HMB (Hukbong Mapagpalaya ng Bayan). Later, by order of April 14, 1955, this Court appointed the Staff Judge Advocate of the Philippine Constabulary the custodian of the same documents and exhibits. Those documents and exhibits were kept at the headquarters of the Philippine Constabulary at Camp Crame, Quezon City. On September 10, 1958 the headquarters of the PC was destroyed by fire, and all those documents and exhibits were burned. Upon a petition for the reconstitution of the said documents and exhibits, this Court appointed Deputy Clerk of Court Bienvenido Ejercito as Commissioner to receive evidence for the reconstitution of those documents and exhibits. The Commissioner, after due hearing, submitted his report, dated October 6, 1959, recommending that the documents and exhibits that were burned be declared reconstituted by the photostatic copies of the originals of those documents and exhibits. The Commissioner stated in his report that those photostatic copies were duly identified during the hearings on the reconstitution. Over the objection of counsels for the defendants-appellants, this Court approved the report of the Commissioner.

          Counsels for the appellants were allowed by the Court all the time that they needed to prepare the briefs for the appellants. The last brief for the appellants was filed on January 22, 1963. The Solicitor General filed the brief for the appellee (People of the Philippines) on June 29, 1963. These appeals were set for hearing on oral argument on August 28, 1963. On that date counsel for some of the defendants-appellants argued the case for their clients; and counsels for other defendants-appellants were given a period of 20 days to submit a memorandum in lieu of oral argument. The Solicitor General was likewise granted leave to submit a reply memorandum within 20 days from the receipt of the copies of the appellants' memoranda. Upon the filing of the memoranda these cases were considered submitted for decision.

          These cases have been pending for decision in this Court since October, 1963, and it would seem that this Court has not acted with dispatch in the disposition of these cases. It must be known, however, that this Court has been swamped with cases appealed from the lower courts and from administrative bodies and officials, as provided by law, and despite the arduous labors by the members of this Court the docket of this Court has been, and still is, clogged. There are numerous criminal cases appealed to this Court ahead of these five cases. Certainly the appellants in those earlier appealed criminal cases deserve the same concern from this Court that the appellants in these five cases expect for themselves. The record of these five cases, consisting of the "rollos", the transcript of the stenographic notes taken during the trial and the documentary exhibits, is so voluminous that when piled vertically it would stand almost three feet high. The record has to be meticulously examined and studied by the members of this Court, working as a collegiate body. In deciding cases, this Court inclines more to careful study and deliberation rather than to dispatch.

Existence and activities of the CPP and HMB

          We have thoroughly examined the testimonial and documentary evidence in the present cases, and We find it conclusively proved, as did the lower court, that as of the year 1950 when elements of the police and armed forces of the Government arrested the defendants in these five cases there was already a nationwide organization of the Communist Party of the Philippines (CPP), and that said party had a well-organized plan to overthrow the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China. The Communist Party of the Philippines had as its military arm the organization known as the "Hukbong Mapagpalaya ng Bayan" (HMB), otherwise or formerly known as the Hukbalahaps (Huks). It is established that the rebellious activities of the HMB, and the commission of common crimes in different parts of the country by the HMB, were directed by the Communist Party of the Philippines through its Politburo (PB) and/or Secretariat (SEC). The Politburo and/or the Secretariat gave orders to the field through its general headquarters (GHQ) and its regional commands (RECOS), and reports to the Politburo and/or Secretariat were made regarding the activities of the HMB, giving accounts of the sorties or ambushes and attacks against elements of the police, the Philippine Constabulary and the army, and of killings, lootings and destruction's of property. It is also established that the plan of the Communist Party was not only to overthrow the Philippine Government but also to kill officials of the Government and private individuals who refused to cooperate with the rebels, and orders to this effect were transmitted to the HMB.

          Among the documentary evidence presented during the trial is the Constitution of the Communist Party of the Philippines, one of the documents seized in one of the raids when some of the appellant were arrested. In this document it is shown that the CPP has a National Congress (NC) which is the highest Authority in the party. The National Congress formulates the policies of the party, and determines the functions of the party and of the standing committees; it renders decisions on all problems regarding organizations and tactics, and on appeals brought before it; and it elects the members of the Central Committee (CC). The Central Committee, which is the highest authority when the National Congress is not in session, enforces the Constitution, implements the policies formulated by the National Congress, promulgates Rules and regulations, supervises all political and organizational work of the party, takes charge of financial matters and renders an accounting thereof to the National Congress, and elects the General Secretary (SEC) and all the members of the Politburo. The Politburo (PB) is the real executive body of the party, and is responsible for the execution of the powers and duties of the Central Committee when the latter is not in session. The General Secretary and the Politburo

are responsible to the Central Committee for all their decisions and actions. Then there are departments, bureaus, committees and other organizational units. There is the National Education Department (NED), the educational Department (ED), the Organization Bureau (OB), the Organizational Department (OD), the District Organization Committee (DOC) the Peasants' Organization (PO), the Trade Union Department (TUD), the Sanggunian Tanggulang Baryo (STB), the Military Committee (MC), the General Headquarters (GHQ), the Regional Command (RECO), the Field Command (FC), the Battalion (BN), the Company, (CO), the Platoon (PLN), and the Squad (SQD). There is also the National Finance Committee (NFC) in charge of the financial matters of the Party, the RECO Finance Committee (RFC), the District Finance Committee (DFC), the Field Command Supply Officer (FC-G-4), the Battalion Supply Officer (Bn-G-4), the Company Supply Officer (Co-G-4), the Platoon Supply Officer (Pln-S-4), the National Courier Division (NCD), the Reco Courier Division (RCB), the Central Post (CP), and Field Command Courier (FC-Courier).

          The Secretariat provisionally assumed the functions of the GHQ which was abolished by the Politburo in its conference in January 1950. The Secretariat alone has final authority to impose the death penalty in court martial cases where SECCOM (National Committee) cadres are involved. Several SEC transmissions to the Politburo members assigned to regional commands indicate that the Secretariat discussed plans of attack by the HMB, distributes forces, and supplies intelligence information.

          There is the National Courier (or Communication) Division (NCD), which is in charge of the communication system of the CPP, and the distribution of supplies to the different regional commands in the field. There is a Special Warfare Division, in charge of operating technological warfare against the enemy such as the use of homemade bombs, molotov cocktails, land mine traps, etc. There is the Technical Group (TG) which attends to the manufacture of homemade firearms and other weapons. This group includes chemists and engineers. Then there is the National Intelligence Division, in charge of gathering military intelligence, as well as political and economic intelligence.

          For purposes of regional commands, the Philippines was divided geographically into ten regions in order to facilitate the political, military, and economic administration by the Communist Party of the Philippines. Those regional commands are as follows: .

          RECO 1 — Nueva Ecija, Pangasinan and lower Mt. Province.

          RECO 2 — Pampanga, Tarlac, Zambales and Bataan.

          RECO 3 — Bulacan and Rizal, except the towns under City Command.

          RECO 4 — Laguna, Batangas, Quezon and Cavite.

          RECO 5 — Camarines Norte, Camarines Sur, Albay and Sorsogon.

          RECO 6 — Panay, Negros, Cebu, Samar, Leyte, Bohol and Palawan.

          RECO 7 — Davao, Lanao, Cotabato, Zamboanga and Agusan.

          RECO 8 — Cagayan Valley provinces and Nueva Viscaya.

          RECO 9 — Ilocos Norte, Ilocos Sur, Abra, and La Union.

          CITY COMMAND — Manila, Malabon, Caloocan, Navotas, San Francisco del Monte, Quezon City, Mandaluyong, San Juan, Marikina, Pasig, Guadalupe, Pasay, Baclaran, Parañaque, Muntinglupa and Alabang.

          The Communist Party of the Philippines has a flag, colored red, with the symbols of the hammer and the sickle (Exhibit A), and a newspaper organ called "TITIS". In the general plan to indoctrinate the masses into communistic ideas and principles, communist schools — some of them called "Stalin University" — were set up in a number of places in the mountain fastnesses, where trained instructors gave lectures and taught lessons in the principles of Karl Marx, Frederich Engels, Joseph Stalin and Nicolai Lenin. .

          As has been stated, the CPP has an armed force, which is the HMB. The predecessor of the HMB was the HUKBALAHAP, an organization created by the party during the Japanese occupation to resist the Japanese forces. Upon liberation of the Philippines, the members of the Hukbalahap continued their activities, the organization was renamed HMB, and its members were indoctrinated in communistic principles. The members of the HMB are known as "Huks".

          The tie-up between the CPP and the HMB is established beyond doubt by the evidence. It is shown that the heads of the CPP were in regular communication with the leaders of the HMB, and the raids, ambushes, burnings, lootings and killings were planned and authorized by the CPP. Appellant Federico Maclang, who is a member of the Politburo, in his testimony, admitted that the HMB is the armed force of the CPP. Luis Taruc, who at the time was the head of the HMB, participated in the meetings and deliberations of the CPP. Some instances may be cited: (1) When Luis Taruc, leader of the HMB, was interviewed by Manuel Manahan representing the newspaper "Bagong Buhay", sometime in July 1950, the said interview was planned, approved and authorized by the Secretariat of the Communist Party. The purpose of the interview was to make Taruc declare about the true status of the leadership in the HMB and the CPP, and belie reports of division among the leaders; (2) When appellant Simeon Rodriguez, a member of the Politburo and a ranking member of the National Finance Committee, was arrested at 268 Pasaje Rosario, Paco, Manila on October 18, 1950, there were found in his possession 65 P100-bills and 60 P50-bills and also P145 circulating notes and $312 in paper currency whose serial numbers (except two dollars) tallied with the serial numbers of part of the money (amounting to more than P80,000) that was taken by the Huks from the safe of the office of the Provincial Treasurer when they raided Sta. Cruz, Laguna, on August 26, 1950. Provincial Treasurer Balbino Kabigting of Laguna had a record of the serial numbers of the money taken by the Huks, and he even issued a warning to the public about the loss of the money — mentioning in the warning the serial numbers of the money taken. There are documents showing that this money taken from the provincial treasury of Laguna was the subject of communications between Luis Taruc and appellant Federico Maclang and other members of the Secretariat.

          Written articles and official publications of the CPP and HMB, which were presented as evidence, show the tie-up between the CPP and HMB. Following are some excerpts from those publications:

          As the situation now stands, it can be assumed that the HMB under Communist leadership, already enjoys a quantitative edge over the Nationalista Party ... (Exh. K-211, p. 7, "Struggle against Awaitism". Emphasis supplied).

          The enemy was caught by surprise. The CPP and the HMB it is leading scored a tremendous political victory ... (Exh. O-33, "Twenty Years of Struggle of the CPP." Emphasis supplied)

          Documentary and testimonial evidence establish that the various raids and ambuscades perpetrated by the HMB were planned, directed and supported by the CPP. Thus, in the "Milestones in the History of the CPP", written by appellant Jose Lava, it is stated that at the enlarged Politburo conference of January, 1950, it was decided to intensify HMB military operations for political and organizational purposes. The widespread raids and attacks on the occasion of the 8th HMB anniversary (March 28-29, 1950) was decided at the PB conference:

          The conference specifically decided to launch coordinated military operations on the occasion of the eight anniversary of the HMB. (Exh. 249, Folder of Exhibits, Vol. V.)

          The CPP ordered the HMB to fight the Philippine Constabulary and attack government installations. Thus testified Benjamin Advincula, a former high ranking HMB member, who said that when he was Secretary of RECO No. 4, he received orders for transmission to the HMB to fight the Philippine Constabulary. Attacks by the HMB were also reported to the CPP. The accomplishments, for instance, of RECO 2 during the attacks at dawn on March 29, 1950 were reported in Enteng's (Luis Taruc) letter to the Secretariat on April 1, 1950. This letter reported the ambush and liquidation of Captain Dumlao and others; the attack and burning of the CG (Civilian Guard) camp at Manibong, Porac, and the capture of arms and ammunitions thereat; the losses on the enemy side; the burning of 12 houses and the liquidation of 2 spies at Mabalacat, Pampanga. A similar report was furnished by a certain Pedring of RECO 2 in a letter to Eto (Federico Maclang) dated April 2, 1950.

          It was, in fact, the Communist Party that celebrated the eighth anniversary of the HMB, as appears in the Communist Party document "Twenty Years of Struggle of the CPP" in which we read about the simultaneous attacks of the HMB on March 29, 1950 the following:

          In quick succession, the Party celebrated the eighth anniversary of the HMB by the coordinated military operations from the far north down to southern Luzon ... (Exh. O-33, Folder of Exhibits, Vol. V)

          The Secretariat issued the following instructions in connection with the May 1, 1950 (Labor Day) attack:

          ... Repeat March 29 simultaneous attacks to time with May 1 celebration to convince the workers of the peasants' unity in struggle with them. Party and HMB messages to be sent. (Exh. O-313, Folder of Exhibits, Vol. V)

          Replying to said order (Exh. 0-313), the Politburo representative of Regional Command No. 3 wrote Gaston (Jose Lava of the Secretariat) and said:

          Ukol sa Plan for May lst OK. We will try our best to accomplish our part without hesitation. (Exh. M-179, Folder of Exhibits, Vol. III).

          The May 1, 1950 attack was followed by simultaneous attacks by the HMB on August 26, 1950, in commemoration of the first "Cry of Balintawak." These attacks were again decided, planned and directed by the Communist Party of the Philippines as shown by transmissions

from the Secretariat to the Politburo members in the field. (Exhs. O-93; par. 2; O-102, par. 6). The attacks on August 26, 1950 were also ordered by the Secretariat, because the evidence shows that the Secretariat required submission of complete report thereof, and reports were in fact submitted by Taruc (Enteng) on September 9, 1950 (Exhs. O-638, par. 8; O-278).

          The Communist Party also planned the attack for November 7, 1950, the 20th anniversary of the CPP, which required bigger operations than the attack of August 26, because towns were to be captured, barracks and jails were to be raided and political enemies were to be liquidated. The SEC assigned and allocated the forces to different phases and places of operations. In hand-written notes identified by expert witness to have been written by appellant Jose Lava, the following appears in connection with the plans for November 7:

          ... Coordinated — Core: Capture of towns near Manila, but near Mt. bases — Coordination of RECO 2, 3 & 4, Rizal — Cavite. Pol liquidation in City. Bringing fight near strategic political, military and economic centers Supporting RECO 1 in ILOCOS & CAGAYAN. RECO 5 in BICOL & RECO 6 in VISAYAS. (Exh. O-12.)

          As We have stated, the primordial objective of the Communist Party of the Philippines and of its armed force, the HMB, was to overthrow the Philippine Government by armed struggle. To attain this objective, the CPP also envisioned the following expansion: of the cadres from 3,600 in July, 1950 to 56,000 in September 1951; of the party members from 10,900 in July, 1950 to 172,800 in September, 1951; of HMB members from 10,800 in July, 1950 to 172,800 in September, 1951; and of the organized masses from 30,000 in July, 1950 to 2,430,000 in September, 1951.

          The Communist Party declared the existence of a revolutionary situation in November, 1949 and went underground. This appears in the following excerpts from documents that were presented as evidence during the trial.

          Quickly sizing up the existence of a revolutionary situation, arising from the merger ... of the crises of production due to the imperialist-feudal domination of our economy, and the parliamentary crises due to fraud and terrorism in the 1949 elections, the CPP openly called on the people to overthrow the Liberal Party puppets of the American imperialists. (Exh. O-32, "Twenty Years of Struggle of the CPP", Exh. O-12 [hh])

          In the Philippines, the CPP has already declared the existence of a revolutionary situation; and it is concentrating all its energies towards the hastening of the maturity of the revolutionary situation into a crisis leading to the overthrow of the imperialist puppets and the achievement of the NEW DEMOCRACY. (Exh. O-949, "Strategy and Tactics," Exhs. O-126-141) .

          The CPP has declared the existence of a revolutionary situation; since November, 1949, as a result of the merger of the crisis in production of our imperialist feudal dominated economy and the crisis of the burgeois parliamentarism ... Since then, the CPP went completely underground, and openly called on the people for the armed overthrow of the power of American imperialism and its allies in the Philippines exercised through its puppets ... (Exh. O-65)

          The Communist Party of the Philippines is leading the armed struggle for national liberation and the establishment of a New Democracy in order to crush the power of the exploiters, achieve power for the exploited classes, and who are disposed to accept the new society ..." (Exh. O-119 "Accounting for the Peoples' Fund Received and Spent to Finance the Revolution"; see also Exhs. K-12 (u), N-570-573, M-1574, K-244, O-749-56, Documents approved by SEC in its meeting on February 15, 1950. Exh. O-312, par. 3. See Vol. III, Folder of Exhibits)

          ... The Communist Party marks the 54th anniversary of the CRY OF BALINTAWAK calling on the people to join the HMB in annihilating the enemy today, no different from the enemy denounced by Bonifacio. (Exh. M-1524, Vol. III, Folder of Exhibits).

          We find that the criminal acts, consisting of attacks against Philippine Constabulary, murders, robberies, kidnapping, arson, etc. alleged in the information are duly proved by evidence presented during the trial. It is noteworthy that the appellants did not attempt to disprove the evidence regarding the commission of these crimes. Besides those alleged in the information, there were other acts of attacks against the Philippine Constabulary, murders, robberies, etc. that were committed by the Huks that are proved by the evidence — also not disproved by the appellants — as follows:

(1) On March 29, 1950, a band of armed Huks carrying a communist flag raided San Pablo, Laguna. An encounter with the 27th PC Company ensued, and several members of the PC were injured. The Huks looted several Chinese stores.

(2) At about 3 o'clock in the morning of August 26, 1950, approximately 400 Huk dissidents armed with machine guns and rifles attacked Santa Cruz, Laguna. The cashier of the office of the Provincial Treasurer was forced at gun point, to open the vault from which the Huks took more than P80,600. The Huks also took typewriters and office supplies from the office of the Provincial Treasurer. The Huks, after forcing the warden to give the keys, opened the provincial jail and released the prisoners. The provincial jail was later burned. The Huks looted houses and took rice, cigarettes and clothes, and burned five buildings.

(3) On March 29, 1950, several Huks raided San Mateo, Rizal, opened the safe in the municipal building and took money. They also got food and medicines from the townspeople.

(4) On August 28, 1950, Huks attacked the municipal building of Arayat, Pampanga, and forced the municipal mayor at the point of a gun to give P3,629.31 in cash and some documentary stamps. Killed during the incident was one Atty. Samia.

(5) On March 28, 1950, about 80 to 100 Huks attacked San Rafael, Montalban, killing 4 and wounding all soldiers. After the attack, the Huks left communist propaganda leaflets.

(6) On August 30, 1949, upon receiving a report that there was a concentration of Huks at Kamog, San Jose del Monte, Bulacan, Lt. Restituto A. Bisda organized a patrol of 20 enlisted men. On the way the patrol was fired upon by the Huks. After the encounter, one Huk member was found dead and from his body were taken several documents.

(7) On October 15 and 17, 1950, P.C. Lt. Velasquez led three platoons of soldiers to the southwestern slope of Mount Malipuño at Lipa City upon receipt of a report that about 200 Huks were gathered in that place. While climbing the mountain they were suddenly attacked and fired upon by the dissidents killing one soldier and wounding others. When they retaliated, the Huks retreated leaving behind a wounded Huk. The Huks abandoned their hideouts in the place. Upon inspection, Lt. Velasquez found a hut with several blackboards, papers and other school supplies inside and a red hammer-and-sickle flag displayed on the wall with letters "STALIN U" (Stalin University), which indicated that the place is one of the military schools for the Huks. (The flag was produced in court and marked Exhibit "A" for the prosecution. This flag had been identified by a witness for the prosecution, a former Huk Colonel named Benjamin Advincula, to be the official flag of the HMB in their military training school in the mountains wherein he had also undergone Huk military training.)

(8) At about midnight on March 29, 1950, Huk dissidents entered the town of Tanauan, Batangas. According to George Collantes, the municipal mayor, there was shooting in the town, and later the industrial center and market were burned after they were raided. Mayor Collantes saw a red flag hoisted by the dissidents. Two of the Huk dissidents were killed.

Issues raised by appellants

          The appellants, in their defense in the present appeals, have raised issues that are common to them all, and also issues particular to each one of them. The issues particular to individual appellants will be discussed at the latter part of this opinion when we deal with their respective appeals.

          1. The appellants are charged with having committed the crime of rebellion with murders and arsons. The trial court declared some of them guilty as principals, and some as accomplices, in the commission of the crime of rebellion complexed with multiple murder, arsons and robberies.

          The law pertinent to the determination of the criminal responsibility of the appellants are Articles 134, 135, and 136 of Revised Penal Code, as follows: .

          ART 134. Rebellion or insurrection — How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

          ART. 135. Penalty for rebellion or insurrection. — Any person who promotes, maintains, or heads a rebellion or insurrection, or who, while holding any public office or employment takes part therein, engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated, shall suffer the penalty of prision mayor and a fine not to exceed 20,000 pesos.

          Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.

          When the rebellion or insurrection shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the rebels shall be deemed the leader of such rebellion.

          ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a fine not exceeding 2,000 pesos.

          It is the common contention of the appellants that the trial court erred in declaring that the crime committed by the appellants was that of "rebellion complexed with multiple murder, arsons, and robberies."

          We uphold the contention of the appellants. The question, of whether or not a person may be prosecuted and held guilty of the crime of rebellion complexed with murder, arson, robbery and/or other common crimes, is now settled. In the case of People vs. Hernandez, etc., et al., 1 this Court held that the crime of rebellion cannot be complexed with other common crimes. The accused in the Hernandez case were charged, as are appellants in the instant cases, "with the crime of rebellion with multiple murder, arsons, and robberies." This Court ruled that:

          One of the means by which rebellion may be committed, in the words of said Article 135, is by "engaging in war against the forces of the government" and "committing serious violence" in the prosecution of said "war". These expressions imply everything that war connotes, namely; resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake — except that very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and a passion or ruthlessness seldom found in a contest between strangers. Being within the purview of "engaging in war" and "committing serious violence", said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offenses, but only one crime — that of rebellion plain and simple. Thus, for instance, it has been held that "the crime of treason may be committed" by executing either a single or similar intentional overt acts, different or similar but distinct, and for that reason, it may be considered one single continuous offense. (Guinto vs. Veluz, 77 Phil. 801, 44 Off. Gaz., 909.)" (People vs. Pacheco, 93 Phil. 521.).

          Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows necessarily that said acts offer no occasion for the application of Article 48, which requires therefor the commission of, at least, two crimes. Hence, this court has never in the past, convicted any person of the "complex crime of rebellion with murder". What is more, it appears that in every one of the cases of rebellion published in the Philippine Reports, the defendants were convicted of simple rebellion, although they had killed several persons, sometimes peace officers. (U.S. vs. Lagnason, 3 Phil. 472;

U.S. vs. Baldello, 3 Phil. 509; U.S. vs. Ayala, 6 Phil. 151; League vs. People, 73 Phil. 155)

x x x           x x x           x x x

          There is one other reason — and a fundamental one at that — why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor; and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. In other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48, said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.

          Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro:

          La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo. (II Doctrina Penal del Tribunal Supremo de España, p. 2168.)

          ... It is evident to us that the policy of our statutes on rebellion is to consider all acts committed in furtherance thereof — as specified in Article 134 and 135 of the Revised Penal Code — as constituting only one crime, punishable with one single penalty — namely, that prescribed in said Article 135. ....

          ... In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingridients of the crime of rebellion allegedly committed by the said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P20,000; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed to bail." The foregoing ruling was adhered to in the decisions of this Court in the cases of People vs. Geronimo, G.R. No. L-8936, October 23, 1956; People vs. Togonon, G.R. No. L-8926, June 29, 1957; People vs. Romagosa, G.R. No. L-8476, February 28, 1958; and People vs. Santos, G.R. No. L-11813, September 17, 1958.

          In People vs. Geronimo, supra, this Court further elaborated on the Hernandez ruling, as follows:

          As in treason, where both intent and overt act are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in Article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of Article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist is shown by the absence of any penalty attached to Article 134. It follows, therefore, that any or all of the acts described in Article 135, when committed as a means to or in furtherance of the subversive ends described in Article 134, becomes absorbed in the crime of rebellion, and cannot be regarded or penalized as distinct crimes in themselves. In law they are part and parcel of the rebellion itself, and cannot be considered as giving rise to a separate crime, that, under Article 48 of the Code, would constitute a complex one with that of rebellion.

          And in People vs. Aquino, et al., L-13789, June 30, 1960, 57 O.G. 9180, this Court said:

          On the other hand, from the very testimony of Filomeno Casal, another witness for the prosecution, it can be gathered that the one who killed or ordered the killing of Mendoza was Commander Silva who, according to Casal, ordered Mendoza to lie down and when the latter refused he shot him. If we are to believe the testimony of this witness the only one responsible for Mendoza's death is Commander Silva for there is nothing to show that his companions who were under his command knew that his design was to liquidate him. At any rate, since it appears that the killing was committed not because of any personal motive on the part of the accused but merely in pursuance of the huk movement to overthrow the duly constituted authorities, the proper charge against them would be rebellion and not murder ....

          The reason for this was already given by this Court in People vs. Hernandez, et al., supra, to wit:

          In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then said offense becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter."2

          The Solicitor General, in behalf of the appellee, The People of the Philippines, asks this Court to reexamine the ruling in the Hernandez case "based not only on grounds of public policy but also to interpret the law in order to have justice and adequacy into the Philippine law on rebellion on the basis of prevailing jurisprudential schools of thought such as the sociological theory on the natural law doctrine and ... the policy science theory."  3 This Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court said in that case, as follows:

          The Court is conscious of the keen interest displayed, and the considerable efforts exerted, by the Executive Department in the apprehension and prosecution of those believed to be guilty of crimes against public order, of the lives lost, and the time and money spent in connection therewith, as well as of the possible implications or

repercussions in the security of the State. The careful consideration given to said policy of a coordinate and co-equal branch of the Government is reflected in the time consumed, the extensive and intensive research work undertaken, and the many meetings held by the members of the court for the purpose of elucidating on the question under discussion and of settling the same.

          The role of the judicial department under the Constitution is, however, clear — to settle justiciable controversies by the application of the law. And the latter must be enforced as it is — with all its flaws and defects, not affecting its validity — not as the judges would have it. In other words, the courts must apply the policy of the State as set forth in its laws, regardless of the wisdom thereof.

x x x           x x x           x x x

          Thus the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in comparison with the laws in force during the Spanish regime. Such policy has not suffered the slightest alteration. Although the Government has, for the past five or six years, adopted a more vigorous course of action in the apprehension of violators of said law and in their prosecution, the established policy of the State, as regards the punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of such policy. This falls within the province of the policy-making branch of the Government — the Congress of the Philippines ...

x x x           x x x           x x x

          Such evils as may result from the failure of the policy of the law punishing the offense to dovetail with the policy of the law enforcing agencies in the apprehension and prosecution of the offenders are matters which may be brought to the attention of the departments concerned. The judicial branch cannot amend the former in order to suit the latter. The Court cannot indulge in judicial legislation without violating the principles of separation of powers, and, hence, undermining the foundation of our republican system. In short, we cannot accept the theory of the prosecution without causing much bigger harm than that which would allegedly result from the adoption of the opposite view.

2. The appellants also contend that the informations against them charge more than one offense, in violation of Section 12, Rule 106 of the old Rules of Court (now Section 12, Rule 117 of the new Rules of Court). This contention has no merit. A reading of the informations reveals the theory of the prosecution that the accused had committed the complex crime of rebellion with murders, robberies and arsons, enumerating therein eight counts regarding specific acts of murder, robbery and arson. These acts were committed, to quote the information, "to create and spread terrorism in order to facilitate the accomplishment of the aforesaid purpose", that is, to overthrow the Government. The appellants are not charged with the commission of each and every crime specified in the counts as crimes separate and distinct from that of rebellion. The specific acts are alleged merely to complete the narration of facts, thereby specifying the way the crime of rebellion was allegedly committed, and to apprise the defendants of the particular facts intended to be proved as the basis for a finding of conspiracy and/or direct participation in the commission of the crime of rebellion. 4 An information is not duplicitous if it charges several related acts, all of which constitute a single offense, although the acts may in themselves be

distinct offenses. 5 Moreover, this Court has held that acts of murder, arson, robbery, physical injuries, etc. are absorbed by, and form part and parcel of, the crime of rebellion if committed as a means to or in furtherance of the rebellion charged. 6

3. Another contention of appellants is that the trial court, the Court of First Instance of Manila, did not have jurisdiction to try the cases against them because the acts enumerated in the eight counts in the information were committed outside the territorial jurisdiction of the court. This contention is also without merit. Section 14 of Rule 110 of the Rules of Court provides that the criminal action shall be instituted and tried in the court of the municipality or province where the offense was committed or any one of the essential ingredients thereof took place. The informations allege that Manila is the seat of the Government of the Republic of the Philippines which the appellants sought to overthrow and that Manila was chosen by the accused as the nerve center of all their rebellious activities in the different parts of the country. While it is true that the murders, robberies and arsons alleged in the information were committed outside the City of Manila, in the informations it is alleged that it was in Manila where the accused had decided and agreed to commit the crime of rebellion and it was in Manila where they promoted, maintained, caused, directed and/or commanded the HMB to rise publicly and take arms against the Government, as in fact the HMB had risen publicly, making armed raids, sorties, ambushes, and committing wanton acts of murder, arson, looting, etc. An essential ingredient of the crime of which appellants were charged, therefore, took place in Manila.

4. Some of the appellants contend that their constitutional rights were violated because the documentary evidence presented against them were illegally seized or had come from doubtful sources. This claim has no merit. We have carefully examined the record, and We find that search warrants were properly secured by the peace officers before raids were effected and that the documents, articles and effects seized from each place raided were listed, inventoried and marked. It even appears that statements were signed by some of the appellants certifying that the search warrants were executed in an orderly and peaceful manner by the raiding parties.

5. The appellants assail the reconstitution of the exhibits that were destroyed, and claim that the reconstituted exhibits should not be considered in this appeal. We have stated at the earlier part of this opinion that the exhibits (documentary and other articles) were placed in the custody of the Philippine Constabulary because they had to be presented as evidence in the trial of rebellion cases pending in other courts. Most of the originals of the documentary evidence were burned during the fire that gutted the headquarters of the Philippine Constabulary on September 10, 1958. The Solicitor General filed a petition for the reconstitution of the burned exhibits. The petition was given due course by this Court, and the Deputy Clerk of this Court was commissioned to receive the evidence on the reconstitution of the burned documents. The list of reconstituted exhibits is Exhibit C-Reconstitution. In his report, dated October 6, 1959, the Commissioner recommended the admission of all the reconstituted exhibits.

          We find that the reconstitution was made in accordance with the provisions of Act 3110, which provides for the procedure in the reconstitution of court records. Section 59 of said act provides that destroyed documentary evidence shall be reconstituted by means of secondary evidence which may be presented to any Justice of the Supreme Court or any other officer commissioned by the Court. Section 14 of the act provides that the destroyed or lost documentary evidence shall be replaced by secondary evidence. A photostatic copy of an original document is admissible as a secondary evidence of the contents of the originals and they constitute evidence of a satisfactory nature. 7 The record shows that the photostatic copies of the destroyed exhibits, which were presented before the Commissioner during the

reconstitution proceedings, were taken before the originals were destroyed by fire. The photostatic copies had been compared with the originals, properly checked and recorded, by the officer who was the custodian of the exhibits.

          The certified typewritten copies made from the original documents that were hand written in ink are also secondary evidence of the contents of the latter. Sgt. Aquilino Tingco, assigned as assistant to the document officer in charge of the court of exhibits in the rebellion cases, testified that he was the one who furnished the typists the original documents, and after those originals were copied on the typewriter he compared the typewritten copies with the originals, proofread them, stamped them and had them certified as true copies. This witness further testified that before the certified copies were presented in court as evidence said copies were compared with their originals. 8

          During the reconstitution proceedings, counsel for appellants objected to the admission of some of the reconstituted documents upon the ground that they were not sufficiently identified. The Commissioner, however, admitted all there constituted documents, and We find that the Commissioner rightly did so. We find that Exhibits R-X-6 to R-P-73-79, the admission of which was objected to, were properly identified. Captain Enrique L. Reyes of the PC, who was entrusted with the custody of the documents, had the list of all the exhibits that were burned, which were inventoried and verified; as well as a list of those exhibits that were presented in these cases, of which photostatic copies had been taken; and when asked where the photostatic copies were, Capt. Reyes said that he had the photostatic copies, and pointed to a bundle of folders containing them. These exhibits were checked and counter-checked with the record of the present cases in the Supreme Court. 9 Sgt. Aquilino Tingco, who brought the exhibits to the different courts where they were presented as evidence, and who personally supervised the taking of the microfilm and the photostatic copies that were presented in the courts in lieu of the originals, when asked to show to the Commissioner the photostats made of the documents which were used the Politburo cases, extracted from a folder a bundle of papers and presented the list of exhibits (Exh. C-Reconstitution) along with photostatic copies of those listed exhibits, and he testified on them. The witness was asked to consult the list of exhibits (Exhibit C-Reconstitution) and he pointed to the Commissioner the exhibits to be marked according to the list, which the Commissioner himself marked. The witness testified that the contents of the documents thus marked were the same as those of the originals. The Commissioner considered the documents properly identified and he admitted the documents over the objection of counsel for the appellants, and he recommended to this Court the admission of all of them. This Court approved the report of the Commissioner.

          We have carefully examined and analyzed these reconstituted exhibits and We believe that they constitute a competent evidence to be considered in arriving at a decision in these cases.

          6. The appellants also claim that they were not afforded the time and freedom to prepare for their defense. This claim of appellants is not borne by the record. The record shows, that the trial of these cases took months; all the defendants were represented by counsel, either de officio or de parte, who did their best to defend the appellants during the trial. In fact the defense lawyers were commended by the trial court for their efforts in defense of the appellants. None of the appellants was deprived of his day in court. Everyone was given an opportunity testify and/or adduce evidence in his behalf. All the appellants, except Jose Lava and Nicanor Razon, Sr., testified in court in their own defense. The record does not show that appellant Razon had testified or had presented any evidence in his behalf. Appellant Jose Lava voluntarily refrained

from taking the witness stand, but, instead, he presented witnesses who vouched for his good moral character and exemplary conduct as a citizen. We find no merit in the claim that the appellants were not afforded ample time and opportunity to prepare for their defense.

          Having thus resolved the common issues raised by the appellants, We now proceed to determine the criminal responsibility, if any, of the individual appellants.

          The lower court found some of the appellants guilty as principals, and some as accomplices, in the commission of the complex crime of rebellion with multiple murder, arsons and robberies. We have already declared in this opinion that the crime of rebellion cannot be complexed with murder, robbery and other common crimes. Our task, therefore, is to determine the degree of responsibility of each of the appellants in the commission of the crime of simple rebellion as defined and penalized under the provisions of Articles 134, 135 and 136 of the Revised Penal Code.

          1. The appeal of Jose Lava

          Upon a careful study of the evidence, We find:

          That appellant Jose Lava was known under these aliases: Harry, Felix Cruz, Gaston, Gaston Silayan, Greg, Gregorio Santayana and Gavino. Jose Lava became a member of the Communist Party of the Philippines during the Japanese occupation. In a self-appraisal which he wrote, and published in mimeograph form with the approval of the Secretariat, he stated that although he was a new Party member he had been entrusted with responsible positions in the Party and that due to his high sense of responsibility and initiative he could rank with the best in the party. Lava was not only, a confirmed communist; he was a ranking leader of the CPP, being a member of the Central Committee (CC) of the CPP and he participated in the Politburo meetings. In the Politburo conference in Manila in January 1947 he proposed armed struggle to overthrow the Government. His participation therein was described in Exhibit O-228-229, as follows:

          ... There was an attempt in the conference to give it a character of a CC conference notwithstanding the fact that there were only eleven CC members, out of thirty-five, present in the conference. There was also an attempt to isolate some CC members who were easily available, as evidenced by the non-invitation of Coms VY, Harry and Pacing known for their views in support of the Nacionalista-Democratic Alliance coalition, and for an early resumption of the armed struggle. It was only later in the conference, when their absence was noted by certain comrades, that Com Harry was invited to the conference ....

          Com Harry proposed that the conference declare that armed struggle be the main form of struggle ....

          Other documents show that Jose Lava had been attending meetings of the Secretariat (SEC) since October, 1949. He signed, under the alias "Gaston Silayan", the Secretariat's transmission to the Politburo members in the field, under date of October 22, 1949. He issued under different aliases, for and in behalf of the Secretariat, Secretariat transmissions up to October 14, 1950. He signed as "Gaston" the Secretariat's transmission dated December 24, 1949; he signed as "Greg" those of July 22, 1950, of September 23, 1950, of September 30,

1950, of October 7, 1950, and of October 14, 1950; and signed as "Gavino" the transmission dated September 25, 1950.

          Jose Lava's membership in the Secretariat of the CPP is shown in various documents (Exh. C-1313 and Exhs. O-269-270). In another exhibit, N-1015-1017, Kas. Gaston was addressed as the General Secretary.

          As member of the SEC, and as General Secretary, Jose Lava attended SEC meetings and transmitted the decisions of the SEC to the comrades of the Politburo in the regional commands. His direct participation in the meetings of the SEC was mentioned in several SEC transmissions. In one such transmission he (Gaston) advocated the overthrow of the corrupt Liberal Party administration because of the wholesale fraud and terrorism during the elections of 1949. In the meeting of May 5, 1950, he (Gaston) disagreed with Eto (Federico Maclang) and Johnny (Ramon Espiritu) on the way of giving money to deserving families, saying that:

          Even if we have a million pesos now, we still would need same to buy arms and ammo, decisively improve our propaganda to spread our influence over all the country, improve the diet of our fighting soldiers to increase their fighting efficiency, all with a view to hastening the people's victory and end their suffering earlier. (Exh. O-91, par. 2)

          In the SEC meeting of September 29, 1950 "Greg" (Jose Lava) dissented from the majority decision rejecting the proposal that Boris (Angel Baking) be allowed to attend the Military Committee (MC) meeting. (Exh. O-339, par. 15).

          Apart from his routinary duties as General Secretary, other duties were assigned to Jose Lava under hisaliases. Thus, as "Gaston", he was designated in the SEC's meeting of December 20, 1949 to take care of the editorial of the "TITIS", the official organ of the Communist Party; he was given supervision over women matters, and over political and educational matters, in the meetings of February 15, 1950 and April 14, 1950. "Gaston" was also in charge of Direct Party Propaganda, Curriculum and Analysis. As "Greg", he was appointed by the SEC as one of the 15 members of the Military Committee (MC). He was to supervise, as decided in the SEC meeting of April 14, 1950, the newly organized Technological Group. He was instructed by the SEC, in its meeting of September 15, 1950, to prepare a draft of the resolution for discussion before the Military Committee. In the meeting of the SEC on September 22, 1950, he was given power to review all the minutes and decisions of the National Education Commission (NEC) and only matters which he did not approve were to be taken up by the Secretariat.

          Jose Lava also attended and presided at meetings of the Communists and the HMB in his house in Tejeron, Makati. 10

          Jose Lava was the author of many articles and/or writings, among them: "Self-Appraisal by Gregorio Santayana," a handwritten outline; "Struggle against Awaitism, by Gregorio Santayana", also a handwritten outline, with a typewritten copy; "Outline of Strategy and Tactics"; "Strategy and Tactics"; "Twenty Years of Struggle of the CPP"; "Outline on Milestones in the History of the CPP"; "Milestones in the History of the CPP", which is a part of the curriculum in the secondary course of the schools conducted by the CPP. The "Outline on Strategy and Tactics" and "Strategy and Tactics" were also in the secondary curriculum texts of the CPP. He is also the author of "Finance Opportunism, Its Basic Causes and Remedies", a portion of which reads: .

          ... There is no question that we cannot drastically eradicate finance opportunism within the Party and the National liberation movement it is leading, and thereby hasten the maturity of the revolutionary crisis and prepare the Party to create a clear and honest body of administrators and state functionaries and thereby maintain the power of the NEW DEMOCRACY that we are set to establish.

          Another work of Jose Lava is "Accounting of the People's Funds Received and Spent to Finance the Revolutions", a portion of which reads as follows:

          The Communist Party of the Philippines is leading the armed struggle for national liberation and the establishment of a New Democracy in order to crush the power of the exploiters, achieve power for the exploited classes and exercise such power for their benefit, and for those who are disposed to accept the new society ....

          Jose Lava also wrote other documents, among them his handwritten notes containing the territorial extent of Recos 1 to 7, and a plan of attack on the November 7, 1950 celebration; a list containing several persons (aliases) assigned to Recos 1 to 7 and to the Military, Pol-Ed, organizational and GHQ organs; a letter to Eto (Federico Maclang) on the reverse of a list containing names of Malaca_¤_an special agents. He also wrote letters to Party members concerning the activities of the Party and/or HMB — unmistakably indicating conspiracy or connection between him and other top HMB and CPP leaders in the field. Thus, "Gaston" (Lava) wrote a letter to Leo (Cesareo Torres) informing the latter that the stencils for "Ang Komunista" were already sent by NED-Out and that if Leo needed funds, he could ask from the NFC. In a letter of September 4, 1950 to Eto (Federico Maclang), "Gaston" (Lava) transmitted to Maclang three letters, on the reverse side of one which was a note of O. Beria (Maclang) asking who the writers were. In his letter of September 26, 1950 "Gaston" advised Eto (Maclang) to circularize all Recos about the conference of the RECO-Ed and G-3 before October 15. In his letter of September 12, Gaston asked the addressee Johnny (Ramon Espiritu) about the latter's self-appraisal, the Hospital Group, and the selection of two additional members to help Luming (Iluminada Calonje or Salome Cruz).

          The foregoing findings of this Court are based mainly on documents presented as evidence during the trial. Those documents were taken: some from the third floor of the Mayflower Apartments, at Estrada and Pennsylvania Streets in Manila, which was then rented by appellant Lava when it was raided by peace officers on June 23, 1950; and the other documents from the different places that were raided by the MIS agents and the Manila Police on October 18, 1950, where most of the accused in these five cases were arrested. One of the places raided on October 18, 1950 was 683 Pasaje Rosario, Paco, Manila, where appellant Lava was arrested along with his co-accused Federico Bautista, Simeon Rodriguez, Victorina G. Rodriguez and Pedro Vicencio. Numerous documents, books, and articles were seized at that place where Lava was arrested, and those documents were used as evidence during the trial of these five cases in the court below.

          Some of the documents thus seized, and which were presented as evidence, were in appellant Lava's handwriting, or were signed by him using his alias names. This is clearly established by the testimony of a handwriting expert that was presented by the prosecution. The conclusion of the handwriting expert was based on the specimens of Lava's handwriting which were used as standards in comparing with the handwriting and/or signature (in alias) of the appellant that appear in the documents that were presented as evidence against him. It is contended by appellant's counsel that no genuine specimen of Lava's handwriting was

presented as standard for comparison. We do not see merit in this contention. We find that the standards for comparison that were used were the documents marked Exhibits FF-1 and FF-2. 11 Exhibit FF-1 is an application for employment signed by Jose Lava. The signature thereon was testified to by witness Eduardo Romualdez (now Secretary of Finance) as looking "like the signature of Jose Lava." Eduardo Romualdez was acquainted with the handwriting of Jose Lava, having received reports (Exh. FF), parts of which were in the handwriting of Jose Lava "not less than three or four times" while Jose lava, was a bank examiner. 12 Exhibit FF-2 is a cardboard containing a list of books requested by Jose Lava while the latter was detained in Bilibid Prison. Buenaventura Villanueva, to whom the list was given, testified that he saw Lava writing the list on the cardboard. What appears on Exhibit FF-2 is certainly a genuine specimen of Lava's handwriting.

          The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, and has seen the person write. Evidence respecting the handwriting may also be given by comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. 13 The handwriting expert who made the comparison in this case positively identified the handwriting of Jose Lava on the documents presented as evidence against said appellant, specially the handwritten names of Gregorio Santayana, Gaston, Gaston Silayan, Gavino and Greg. 14

          Appellant Jose Lava did not take the witness stand to testify in his own behalf. Instead, he presented witnesses to testify on his good moral character, his strong convictions and his good citizenship. An accused, however, is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct. When a court believes that an accused is guilty beyond reasonable doubt of the crime charged, it must convict him notwithstanding evidence of his good moral character and previous exemplary conduct. 15

          We find that the evidence adduced during the trial has proved beyond reasonable doubt that appellant Jose Lava was one of the top leaders of the CCP, and that he was not only working to propagate the doctrine of communism in the Philippines but was actually promoting an armed uprising against the Government. He did not actually take to the field and participate in the armed attacks against constituted authorities, but in the positions that he held in the CCP, he actually promoted, maintained, and even directed the armed activities of the HMB which were aimed at overthrowing the Government and implanting a new system of government in the Philippines. As General Secretary of the CCP he signed, in his aliases, the communications or transmissions of the Secretariat to the HMB and CCP leaders in the field. As We have stated in this opinion, there was a tie-up between the CCP and the HMB, and that the HMB was the military arm of the CCP. The CCP went underground sometime in November 1949. It was precisely during the latter part of 1949 and during the year 1950 (before the arrests of the accused in these five cases on October 18, 1950) when the HMB was most active in its armed operations against the Government — or against the elements of the Army, the PC and the Police, and against public officials and even against civilians. The evidence against appellant Lava shows that it was in 1949 and 1950 when he, in his capacity as one of the top leaders of the CPP, actively participated in the armed struggle being carried on by the HMB by sending directives and other communications to the leaders of the HMB and to the heads of the regional commands of the CPP who were operating in the field. He was, in fact, one of the leaders of the rebellion. He planned the attack for the November 7, (1950) anniversary celebration, which was to include the capture of towns near Manila and the liquidation of enemies in the City by the different regional commands.

          We agree with the finding of the lower court that appellant Jose Lava is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          2. Appeal of Federico Bautista

          We find it conclusively shown by the evidence that:

          Appellant Federico Bautista had used, or was known under, the aliases: F. Payat, Fred, Freddie, and Freding. He was arrested by the MIS agents and the police on October 18, 1950 at 683 Pasaje Rosario, Paco, Manila, along with his co-accused Jose Lava, Simeon Rodriguez, Victorina G. Rodriguez and Pedro Vicencio. He joined the CPP on August 8, 1949. Testifying in his own behalf, he said that he joined the CPP because of the failure of the administration then to carry out the terms of the Amnesty Proclamation which he helped to bring about; and also because, of the ouster of six members of Congress from the central Luzon provinces who were elected in the 1946 elections, of the frauds and terrorism committed in subsequent elections and the graft and corruption in the government.

          He was a member of the National Finance Committee of the CPP, 16 of which committee Ramon Espiritu (co-accused) was the chairman, and Simeon Rodriguez (co-accused) was a ranking member. As such member of the National Finance Committee part of his duties and responsibilities was the procurement of supplies, such as arms, ammunitions, medicine, office supplies, clothing, etc., for the dissidents' (both of the CPP and of the HMB) organizations in the field. He became a member of the Military Committee of the CPP, with special assignment as Chief of Intelligence, GHQ. 17 He was also assigned to, and exercised authority over, the armed forces (AF [HMB]) in Manila and suburbs, which was called the City Command. He also had supervisory powers over the National Courier Division. 18

          This appellant did not actually take to the field and participated in the armed operations of the HMB, but he did staff work which to promote, maintain and direct the operations of the HMB. Thus, there was presented in evidence a letter 19 written by this appellant to Leo (co-accused Cesareo Torres), under date of July 10, 1950, transmitting the latest party decision regarding authorized daily subsistence allowance of personnel of the CPP organs, ranging from P1.00 to P1.20. Cesareo Torres is the head of the Technical Office in charge of propaganda. In a handwritten tabulation prepared by him, 20 which was sort of a financial statement, there is shown an amount spent for communications and for intelligence. It appears that of the total income of P8,006.80 for April, May and June 1950, 20% was allotted for ammunitions and 10% for intelligence. This financial statement, as finally published, was certified to by Johnny (co-accused Ramon Espiritu) as head of the National Finance Committee, and audited and approved by Tommy (co-accused Honofre Mangila). This document once more indicates clearly that the HMB was being supported by the CPP.

          There is a document labelled "Memorandum on Intelligence", 21 a typewritten draft, which was shown to bear the pencil handwritten insertions and corrections made by appellant Federico Bautista, indicating that this draft was prepared by him. Portion of this document reads:

          Without deviating from the general orientation of expanding evenly along the four branches of intelligence, viz.: Political, economic, cultural and military, the emphasis for the present is on military intelligence both strategic and tactical. This is in conformity with and in direct pursuance of the Party's program of "all for expansion and the armed

struggle." The mechanics of wresting power will eventually be a military struggle, we must have a continual basis by which we can estimate what the enemy intends to do and the tenacity with which they will implement these intentions singly and collectively.

          Appellant Federico Bautista was identified with the high councils of the CPP. He attended Politburo conferences. 22 Along with Ramon Espiritu and one Nicasio Pamintuan, he sat to try, and found guilty, one Domingo Clarin, a member of the HMB Trigger Squad, who was charged with having squealed regarding the hold-up of the Naric in Pulilan. Appellant Federico Bautista had previously assigned Clarin to guard Jose Lava. 23

          We have carefully studied the evidence for the prosecution and defense, as well as the argument of the counsel in the appellant's brief, and We believe that it is proved beyond reasonable doubt that appellant Federico Bautista is one of the leaders of the rebellion jointly undertaken by the CPP and HMB. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          3. Appeal of Federico Maclang

          Appellant Federico Maclang was arrested on October 18, 1950 by agents of the MIS and the Manila Police at 1938 Interior 7, Felix Huertas, Manila, along with Julita Rodriguez and Felipe Engreso — the latter two being among those convicted by the lower court in these five cases, but Julita Rodriguez withdrew her appeal. He used the aliases: O. Beria, Eto, Olibas, Manuel Santos, Manuel Santa Fe and Ambrosia Reyes.

          The evidence conclusively shows that this appellant is a ranking communist, and he was responsible for the organization of the CPP in Manila and Rizal. He issued directives, plans and instructions to the different units of the CPP in the field that were working in close collaboration with the HMB in the latter's armed operations. By his own testimony he revealed that he is a confirmed communist. He declared that he was one of the organizers of the PKM (a peasants' organization) in Luzon, that he became a communist after studying thoroughly the principles of communism in relation to the economic and political conditions of the country; that he believes in the overthrow of "imperialism" and the establishment of a "new democracy" in the Philippines.

          It is shown by the evidence that:

          Appellant Maclang joined the CPP sometime in 1939; and he was a member of the Politburo from 1944 up to the time of his arrest on October 18, 1950. 24

          In the document labelled "Pagtuya sa Sarile", shown to have been written by him, 25 it appears that he was the Chief of the Organizational Bureau (OB) of the CPP from 1948 until the time of his arrest, and that as an organizer he was responsible for the organization of the Regional Commands (Recos) of the party. He was also one of the members of the Secretariat, and as such he actively participated in the deliberations and decisions of the body.

          In several letters of Enteng (Luis Taruc) to him, which were identified during the trial, as well as in his letter to Enteng, a copy of which was found in his possession and was identified by him, 26 his membership in the Secretariat is clearly shown. As a member of the Secretariat he was assigned the supervision on all organizational matters, on the youth problems and activities, and also on military affairs. Likewise, he was assigned supervision over the Trade

Union Division (TUD) and the trade union struggle; also he had supervision over the news section of the TITIS; and he was authorized by the Secretariat to review the decisions of the Regional Command (RECO) and, like appellant Jose Lava, only those decisions which he did not approve were taken up by the Secretariat. 27 As chief of the Organizational Bureau he issued, or approved the issuance of, circulars, plans, and directives to the different organs of the CPP. 28

          This appellant prepared the document entitled "Impiltrasyon". 29 In this document he discussed the problems of infiltration and the methods or techniques to be followed by party members in infiltrating government offices, the armed forces, and the ranks of anti-communist groups, in connection with the underground work of the CPP and the HMB. He also prepared "Pakikibaka sa Pagani" 30 where he urged the peasants to fight for bigger crop shares, and the workers to fight for better wages, pointing out that the government cannot meet the demands of the working class so that the only alternative is to support the "People's Liberation Movement" and effect changes through armed struggle. He wrote the "Pangatawanan ang Kampanya sa Pagpalawak ng Ating Patanim at Pagpalitaw sa Inuhi". 31 where he states the policy of the CPP regarding the expansion of the production areas and the production of more crops to maintain and support the revolution and to prepare the masses for self-government.

          Likewise, he wrote the "Ang Kompiskasyon", a circular issued by the Organizational Bureau (OB), of which he was the head, to all the organizational units of the CPP, explaining the Party's theory of confiscation. This circular authorizes confiscation as a means to raise revenue for the "People's Liberation Movement". This circular lists the classes of individuals who are considered enemies of the revolution and whose properties may be confiscated. 32

          When this appellant was arrested on October 18, 1950, there were found in his possession documents which indubitably show the high positions that he occupied in the CPP and the direct connections that he had with the operations of the HMB. Thus, there is Exhibit N-52, which is a partial report of Reco 2 regarding military operations during the "Cry of Balintawak" celebration. In this report are stated the simultaneous HMB attacks at Camp Makabulos, Tarlac, and at Arayat in the evening of August 25, 1950. There are also Exhibits N-56-57 which are the reports from Reco 2 of the HMB attacks at barrio Capalad, Arayat on September 12, 1950, and at San Luis on September 13, 1950. There was found in his possession, when he was arrested, a file copy (Exh. N-202) of a letter addressed to his comrades in Regional Command No. 4, dated October 14, 1950. The original of this letter (Exh. M-292) was found at 1608-B Andalucia, apparently in transit through the National Courier Division. It should be noted that it is in 1608-B Andalucia where Salome Cruz, the Chairman of the National Courier Division, had her headquarters. In this letter appellant Maclang wrote:

          I received a letter to the SEC from Com Bonifacio, PBS, R-5, dated Oct. 10, 1950. Because of the urgency and because the Comca is leaving at 12:00 a.m. this day, I, as in charge of military matters of the SEC, in the absence of the SEC meeting I have rendered the following decision:

x x x           x x x           x x x

          ORDER: I hereby order to R-4 to take all action concerning all the requests of the letter of Com. Bonifacio to the SEC. Reject the idea of sending back these deserters (men and officers) to R-5 and I am giving full authority to R-4 to arrest and try all these said deserters. All actions should be based on our military rulings.

          The letter of Comrade Bonifacio referred to in the above-quoted letter of appellant Maclang was found in his possession at the time of his arrest. A copy of this letter was found in the possession of the appellant Jose Lava when the latter was arrested at 683 Pasaje Rosario, Paco, Manila, on October 18, 1950. 33 It was shown during the trial that this letter of appellant Maclang was transcribed from the stenographic notes taken down by Julita Rodriguez on her notebook (Exh. M-31-E). This Julita Rodriguez worked as a clerk with appellant-Maclang, and she was also arrested on October 18, 1950 along with Maclang and Felipe Engreso, another employee of Maclang. Both Julita Rodriguez and Felipe Engreso were also accused in these cases. The authority of appellant Maclang on military matters is made manifest in the above-mentioned letter.

          In another letter of appellant Maclang, which was his reply to the letter he received from one Plaridel, regarding the plan for attack on November 7, 1950 celebration, 34 he said:

          Re-celebration, I am glad that you are actively preparing to achieve the SEC objectives. We have no objections on the towns that you have stated including Mcy. Our only doubt here is Mrqn, because this is very near enemy camp, however, proceed to your preparation and we will help you on intelligence operations on said localities. In this connection, we have the opinion that Com. Pacing will cooperate with you in this task as we have been informed that he is coming to your place.

          Re-request on arms and ammos, we are not yet in a position to give you the assurance of aid, however, we are dealing with the smugglers to purchase these ammos to supply such operations. Because it is not very sure, it will be better for the Recos to cooperate on the preparation of ammos.

          There are letters of appellant Maclang to Luming (Salome Cruz), one of the accused, which were presented in evidence, where he gave her orders and instructions regarding the dispatch of couriers to the regional commands and the activities of the National Courier Division. 35 Documents were also presented, which appear to have been issued or approved by the Organizational Bureau of which this appellant was the chief, dealing with the methods of improving the communication system of the CPP. 36 All these indicate that appellant Maclang had also supervision over the National Courier Division (NCD) of the CPP.

          Appellant Maclang, in his defense, denied knowledge about the HMB raids and ambushes. We find, however, overwhelming evidence that disproves his claim. The evidence clearly shows that he participated directly in planning, coordinating, supporting, and approving the HMB raids, attacks and ambushes. He was a member of the Secretariat of the CPP and participated in its meetings. He was in charge of the military affairs of the CPP; he gave orders to the Recos to attack the government forces; he approved the plans of attack against the City of Manila and towns around Manila on November 7, 1959; he received reports of HMB raids and attacks. All these make him, in contemplation of law, a leader of the rebellion.

          There is, to Us, no doubt that by the high positions he held in the CPP, appellant Federico Maclang was one of the leaders of the CPP that promoted, maintained and directed the armed operations of the HMB to overthrow the Philippine government. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          4. Appeal of Ramon Espiritu

          Appellant Ramon Espiritu was arrested by the agents of the MIS and the Manila Police on October 18, 1950 at 1608-B Andalucia Street, Manila, along with Salome Cruz, Rosario Vda. de Santos, Naty Cruz, Aurora Garcia, Lamberto Magboo and Josefina Adelan. He was known by the alias "Johnny".

          In his written statement, 37 he admitted that he was a member of the Politburo and the Chairman of the National Finance Committee of the CPP. The evidence shows that he was a member of the Secretariat of the CPP, and he participated in the deliberations and decisions of that body. 38 He was also one of the 15 members of the Military Committee (MC). 39 He was the Politburo and Secretariat Supervisor of the National Courier Division. 40 He had been assigned to various important positions in the CPP, like the supervision of Trade Union Division (TUD) and the trade union struggle, together with his co-accused Federico R. Maclang. 41 He was also assigned to the City Committee to reorganize the City Committee and the City Command. 42 He was likewise assigned to supervise Luming (co-accused Salome Cruz) in taking care of the sick comrades coming from provinces. 43 He attended meetings of the Communists and HMB. He was one of those who tried Huk member Domingo Clarin, assigned to the Trigger Squad of the HMB, and found him guilty of having squealed regarding the holdup of the NARIC at Pulilan. 44

          In his defense appellant Espiritu testified that he had nothing to do with the HMB raids and ambushes. Seemingly, to justify his membership in the Communist Party, this appellant discussed the general history of labor and its unsavory relations with capital, for which he blamed the feudal economy that had pervaded the economic life of the Filipino people. He candidly recounted his efforts in trying to understand the cause of the people's economic ills, and the efforts of labor unions in demanding better wages and living conditions for laborers.

          Considering the tie-up between the CPP and the HMB, there can hardly be any question that appellant Ramon Espiritu, member of the Politburo, of the Secretariat, and of the Military Committee, of the CPP, had actively participated in promoting and maintaining the armed operations of the HMB, along with top CPP leaders, Jose Lava, Federico Bautista, Federico Maclang, and others. We agree, also, with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          5. Appeal of Salome Cruz

          Appellant Salome Cruz, wife of appellant Ramon Espiritu, was arrested on October 18, 1950 at 1608-B, Andalucia St., Manila. She was known by her two aliases: Luming, and Iluminada Calonje in her written statement, she admitted that she was the Chairman of the National Communication Division (NCD) of the CPP from November, 1949 to May, 1950. 45

          Documentary evidence shows her various positions in the CPP, namely: Acting Chief of the Central Post of the Communications Division and in charge of Sub-Posts; In-charge of Couriers; In-charge of finance from November, 1949 to May 17, 1950; In-charge of all Central Committee cadres when they came to Manila for medical attention; In-charge of sick comrades coming from provinces under the supervision of Johnny (Ramon Espiritu) in the National Commission; and Chairman of the Hospital Group to take care of the sick and wounded from the City and provinces. 46

          The evidence further shows that Salome Cruz wrote several notes and/or documents showing her activities in the National Communication Division, Hospital Group and other party

organs. Thus, on July 4, 1950, she made handwritten notes on " Sub-Posts" containing names (aliases) of regular and irregular couriers of RECO 1 to 7, Dist. No. 5 and Pangasinan; on July 5, 1950, she also made notes on "Regular na Dating at alis ng mga Korriers sa NCD napunta sa bawat Recos", which show the dates of arrivals and departures of the couriers for Recos 1 to 7 Dist. No. 4 Pangasinan and Cavite; on May 5, 1950 she wrote a letter to Johnny (Ramon Espiritu) informing the latter of the arrival and departure of couriers of RECO 1 and the availability for distribution of the April 12 and 30 issues of TITIS; she also wrote letters to Beria (co-accused Federico Maclang), Payat and Fred (co-accused Federico Bautista), and Berting (co-accused Lamberto Magboo), regarding couriers and the activities of the National Communication Division (NCD). 47 She also made handwritten notes on the National Communication Division (NCD) Consolidated Report, showing the income and expenses from May 1 to May 17, 1950 of the Central Post and the Outposts; and a letter to Charing (co-accused Rosario C. Vda. de Santos) on May 17, 1950 instructing the latter to check up the Sub-Posts. 48

          In her brief, appellant Salome Cruz claimed, among other things, that the trial court erred in convicting her as principal, despite the fact that her participation was only on inconsequential details, and her guilt had not been established beyond reasonable doubt.

          There is no evidence to show that appellant Salome Cruz actually took part in the raids, attacks and ambushes perpetrated by the HMB. It cannot be said, however, that her role in the plan to overthrow the Government was inconsequential, she having been in charge of communications, transmitting orders and directives of the Politburo and Secretariat to the HMB in the field until May 1950; she being in charge of couriers, making notes of regular and irregular couriers, their arrivals and departures; she being in charge of the Hospital group to take care of the sick and wounded from the city and provinces. These facts show that she was cooperating actively in promoting and maintaining the armed activities of the HMB, considering the tie-up between the CPP and the HMB. The maintenance of communications between the top leaders of the CPP and the units operating in the field is very essential in the success of the rebellion. It is in this connection that this appellant played a very important role.

          We agree with the finding of the lower court that appellant Salome Cruz is guilty as principal in the commission of the crime of rebellion, and she should be punished accordingly.

          6. Appeal of Rosario C. Vda. de Santos

          Appellant Rosario C. Vda. de Santos was arrested by the agents of the MIS and the Manila Police, together with co-accused Ramon Espiritu, Salome Cruz, Naty Cruz, Aurora Garcia, Lamberto Magboo, and Josefina Adelan, in these five cases, at 1608-B Andalucia, Sampaloc, Manila, on October 18, 1950.

          The evidence shows that:

          Appellant Rosario C. Vda. de Santos uses the alias "Charing". In her testimony, however, she claims that her real name is Aurelia Cayetano. She was designated by the Secretariat of the CPP In-charge of Outpost of the National Communication Division, with the duty to maintain discipline among couriers coming from without. 49 She worked under Salome Cruz (Luming) who was the Chairman of the National Communications Division (NCD) of the CPP. This appellant was in charge of checking the irregular couriers for Regional Commands, 1, 2, 3, 4, 5 and Pangasinan. 50 She was a staff member of the NCD, and she participated in the NCD meetings,

took down minutes, and rendered reports. She made reports to the head of the NCD. One such report says: 51

          Naisasagawang maayos na pagtanggap sa lahat ng dumating at maayos na pagalis ng couriers.

          Another report was that one she made on July 12, 1950, about the outpost: 52

(a) Reco 1, means of communication still good and 2 couriers arrived June 25 and departed July 4.

(b) Reco 2, — The road is still clear and the couriers of Pangasinan were already established there, thru Com. Piping.

(c) Reco 3 — The road is difficult that is the reason why the Post at San Jose is no longer used but that of San Rafael.

(d) Reco 4 — The road is difficult connection severed but D-4 is already connected. (Exh. 159-162).

          As chief of the Outpost, she made, on August 19, 1950, the following report: 53

(a) Reco 1 — Couriers did not arrive, so no report.

(b) Reco 2 — Couriers arrived as the PC are out daily in the field ....

(c) Reco 3 — Road is also difficult.

(d) Reco 4 — Road is not difficult, but no definite Post for the couriers.

(e) District No. 4 — 2 weeks no arrival of couriers but special couriers in Com. Amat (now under arrest) arrived on 12 July '50.

(f) Cavite — Did not arrive last Sunday while the agreement was Saturday.

          In a letter to her co-accused Luming (Salome Cruz), she stated that she knew the circumstances surrounding the killing, and the murderers of Norberto Icasiano, Mayor of Bulacan. 54 She even mentioned that she met the deceased's brother in a school house in Malolos, Bulacan, and that she had to hide her face behind her umbrella in order to avoid being recognized.

          Various documents were shown during the trial which were written by her, and that they were written during meetings of the leaders of the CPP. 55

          In her defense, this appellant testified that her co-accused Ramon Espiritu requested her to stay with him as a household help with a salary of P10.00 a month; that besides preparing food, she was also assigned the duty of recording the letters delivered to and received at that place; that her real name is Aurelia Cayetano, but she was using the name of Rosario C. Vda. de Santos because she was a wanted woman by the Japanese during the occupation for having

aided the guerillas, and she was known by that name among her friends even after the liberation. She admitted that the name "Charing" was hers, but claimed that she did not know the persons writing to her and that they were writing to her because she was the one always in the house.

          We find it proven that this appellant was a staff member of the National Courier (or Communication) Division of the CPP, and that she checked and made reports on the arrival and dispatch of couriers. The lower court declared her guilty as principal in the commission of the crime of rebellion. In Our appraisal of the evidence, however, We find that she was merely executing the orders or commands of others who are superior to her in the organizational set-up of the CPP. Considering that her activities took place while the CPP was underground, and during the period when the armed operations of the HMB were taking place, We find her guilty as a mere participant in the commission of the crime of rebellion under the second paragraph of Article 135 of the Revised Penal Code, and should be punished accordingly.

          7. Appeal of Angel Baking

          Appellant Angel Baking was arrested by the agents of the MIS and of the Manila Police in his office at Room 504 Samanillo Building, Escolta, Manila, on October 19, 1950, along with Marciano de Leon who is also one of the accused in these cases. His house at No. 1518 Calixto Dayco, Paco, Manila, was also raided. From his office and his residence many books, documents, and other papers were seized, which proved that this appellant was a confirmed communist and was having close connections with leaders of the CPP. Some of the books found in his residence are: "The Third Five Year Plan" by V. Molotov; "Reminiscence of Lenin" by C. Zetkin; Marx and Engels (Selected correspondence); "Heroic Lenin-grad"; "Theory of the Agrarian Question (Lenin); "Stalin" (G. I. R., James; "Constitution of the Kirghis Soviet Socialist Republic"; "The Class Struggle in France"; "Biographical Compilation of Communist Leaders outside the Soviet Unions", etc. There are also found reading materials labelled: "Comparative Outlines of Communism and Capitalism showing advantages of communistic ideology"; "Blue Record containing outline of the Taruc story" (this contains draft of Taruc story for filming and publication); "Political Economy" (typewritten — this was shown to be used as text for HMB studies); "Stalin and the National Colonial Question" by John Blake; etc.

          We find, by the evidence, that:

          Appellant Angel Baking used the aliases: Bayan, B. and Boriz. He joined the communist party in April, 1949, although he had been identified with the leaders of the CPP since the early part of 1944. 56 He had been associated with top communists like Jorge Frianeza, Luis Taruc, Federico Bautista, Simeon Rodriguez and Jose Lava. When the Technological Group (TG) of the CPP was organized, it was placed under the immediate supervision of Boriz (Angel Baking) although the final supervision was under Greg (Jose Lava). 57

          In the meeting of the Secretariat of the CPP on September 29, 1950, the attendance of Boriz in the meeting of the Military Committee was discussed, and it appears in the record: "Com. Boriz is a competent technologist, is ready to go out and ready to stay in the field as the Party decides." 58 The Secretariat of the CPP assigned him to head the Special Warfare Division under the GHQ. 59 As head of the Special Warfare Division under the GHQ, appellant Angel Baking wrote a memorandum for the Secretariat regarding the immediate installation of a wireless communication system between the GHQ and the Secretariat. Some paragraphs of the memorandum read as follows:

          Briefly the main point to be dealt with pertains to equipment, its procurement, technical description, distribution, installation, operation and maintenance; technical personnel who will participate in the solution of the technical aspects of the problems; the Code system, which is an integral part of the WCS; and the non-technical implications of the problems.

          Because of the underground nature of the system, several problems not met in the legal installation of this system creep to the surface. The equipment itself is conditioned by abnormal factors which are not met ordinarily; the personnel is difficult to enlist; and the installation, operation and maintenance of the system become unduly handicapped and difficult to perform.

          Since the transmitting unit in Manila cannot be fully used without risking its immediate detection by the enemy, transmissions to the field from HQ (Manila) may partly be coursed thru the legitimate radio stations. This has always been done before, and there is no reason why it cannot be developed now. The essential requirements for this measure would be:

          (1) A cadre to infiltrate the Corps of broadcasters in the radio stations, which may be assigned to the Cultural Group. This cadre should get a position as broadcaster at specific hours, either as station announcer or newscaster for the newspaper or time buyers at the stations;

          (2) This cadre should be given a code system thru which whatever message to be transmitted, may be coursed.60

Appellant Baking admitted having prepared the foregoing draft but he claimed, in his testimony, that draft was prepared way back in May 1948 at the request of one Jorge Frianesa who was a ranking member of the CCP. It appears, however, that when his office in the Samanillo building was raided by the agents of the MIS and the Manila Police this document was found torn inside a waste basket, and this circumstance made the lower court conclude that he wrote the draft not in 1948 but shortly before the raid on October 19, 1950. The lower court further pointed out that his explanation was filmsy because of the numerous evidence which showed that he supervised the Technological Group and the Special Warfare Division at the GHQ of the CCP. We agree with the conclusions of the lower court in this respect.

          Besides there were found in his office at Room 504 Samanillo Building at the time of the raid several U.S. Army technical manuals on Cipher Systems and Advanced Military Cryptography, and these manuals have connection with the recommendation in his memorandum for the use of the code system for transmitting messages thru legitimate radio stations.

          There are still other documents which clearly indicate appellant Baking's cooperation with the leaders of the CCP in the furtherance of the plan to seize power. In the document, marked Exhibit L-33s, he made the following statement:

          To forestall errors in the planning for the future, the training of leading Cadres as economists should be intensified. It is more than likely that by the time CCP seized power, the struggle in Asia shall have been resolved.

          There was found in the possession of Simeon G. Rodriguez (one of the appellants in these cases), the document marked Exhibit O-254 where it appears that appellant Angel Baking acknowledged having received from the National Finance Committee of the CCP the sum of P45.00 for the Technological Group (TG) of which he was a member. Simeon G. Rodriguez is a member of the National Finance Committee of the CCP.

          At the time of his arrest, appellant Angel Baking was a foreign affairs officer in the Department of Foreign Affairs of the Republic of the Philippines. That he was using his position in the Department of Foreign Affairs for intelligence work — and the lower court calls this a manifestation of his "scheming mind" — may be gathered from what he wrote in his diary as follows:

          There was a tactical error in my transfer to the new office room. The office was supposed to be occupied by ambassadors and high-ranking officials. I transferred to it without insuring my hold on the important men of the department. Thus I opened my flank and left my rear unprotected, and made myself extremely vulnerable.

          Because of this, I find myself unprepared to handle that problem. Peter ordered Quiamco that I be transferred back to where I came from.

          I also forgot that the important thing to remember is the unbroken and steady ....

          AGB (Exh. L-78e).

          There is another document found in Baking's residence at 518-B Calixto Dayco which was admitted by him to be his. This document contains entries which indicate his dealings with the CCP organizations and its members. The entries are as follows:

NFC.......................................

P200

Graciano.......................................

190

Graciano.......................................

100

Apolinario

......................................

.100

Talas.......................................

100

SGR.......................................

20

Abe.......................................

50

Godong.......................................

50

Lake.......................................

50

Mario.......................................

50

Lamang.......................................

450

          The "NFC" has been shown to stand for National Finance Committee of the CCP, and "SGR" for Simeon G. Rodriguez, a member of the NFC of the CCP, who is also one of the appellants in the present cases. There were sheets of blank papers seized from 742 Colorado Street, Manila, the printing office of TITIS and the working place of Cesario Torres, also one of the appellants in the present cases, bearing signatures of "Apolinario", "Mariano P. Balgos" and "Luis Taruc".

          Considering the facts We have hereinabove-stated, We have no doubt in our mind that appellant Angel Baking as a confirmed communist, had aided in the efforts of the leaders of the CPP to promote and maintain the armed operations of the HMB to overthrow the government. The lower court found this appellant guilty as principal in the commission of the crime of rebellion. We have noted that the role played by this appellant was that of a technician or adviser. Considering that he participated in the rebellion efforts of the CPP while he was holding a public office. We agree with the finding of the lower court, and he should be punished under the first paragraph of Article 135 of the Revised Penal Code.

          8. Appeal of Lamberto Magboo

          Appellant Lamberto Magboo was arrested by the agents of the MIS and of the Manila Police at 1608-B Andalucia, Manila, on October 18, 1950, along with the accused Ramon Espiritu, Salome Cruz, Rosario C. Vda. de Santos, Naty Cruz, Aurora Garcia and Josefina Adelan. It must be noted that the place, 1608-B Andalucia, is the headquarters of Salome Cruz who was the Chief of the National Courier Division of the CPP. The evidence shows that the other persons who were arrested in that place namely, Naty Cruz, and Josefina Adelan worked as couriers under Salome Cruz. Rosario C. Vda. de Santos also worked under Salome Cruz as in-charge of outpost. Aurora Garcia was employed by her aunt, Rosario Vda. de Santos, as a maid and that she was selling the TITIS.

          The evidence shows that:

          Appellant Lamberto Magboo used the aliases Berting and Eddie. He admitted that he was a courier of the CPP, and that he actually mailed letters and packages at the Bureau of Posts and at the post office at the Far Eastern University; and he delivered letters, boxes of medicines, canned goods, lanterns, and shoes, from 1608-B Andalucia Street (house of appellant Salome Cruz) to the La Mallorca Bus station, to the LTB station, at Altura Street, Sta. Mesa, at Divisoria Street, and at Celeridad Street in Pasay City. 61 He was a checker of the regular and irregular couriers of Recos 1, 4, 5, 6 and 7 and Dist. No. 4 Pangasinan, and was also a special courier of Dist. No. 4, c/o Reco 4. 62

          Considering that the Recos are the units of the CPP that are operating with the HMB in the field, such that the person who acts as courier from the headquarters of the National Courier Division of the CPP in Manila to these Recos was actually working and cooperating with the armed operations to overthrow the government. We find appellant Lamberto Magboo guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and he should be punished accordingly.

          9. Appeal of Nicanor Razon, Sr.

          Appellant Nicanor Razon, Sr., known also by the alias Elias Rubi, admitted that he had been a member of the CPP since July 1, 1945. Among the documents found at 1608-B Andalucia, Sampaloc, Manila, was the cadre registration and oath of this appellant as a member of the CPP. He was the secretary of Barangay I SECCOM (Sectional Committee) II of the District of Tondo, and later rose to the position of treasurer in the same committee. He helped in distributing the TITIS, the official organ of the CPP. 63

          The record does not show that this appellant had testified in his behalf, nor presented any evidence in his defense. In his brief before this Court, however, this appellant claims that the lower court erred in finding him guilty as an accomplice in the commission of the crime of rebellion, no evidence having been adduced to show that he had performed any act, which would constitute a cooperation in promoting the rebellion jointly undertaken by the CPP and the HMB.

          We find merit in the contention of this appellant. We find that the evidence against this appellant only shows that he is a member of the Communist Party, and that he had been secretary and later treasurer of SECCOM II of the District of Tondo. There is no evidence regarding his actual participation in the efforts of the leaders of the CPP and the HMB to promote the rebellion. His having distributed the TITIS, the official organ of the CPP, is at most an act in the category of a propaganda which in itself does not show that he advocated actual uprising against the Government. It has not been shown that he collaborated in the efforts to advance the cause of the rebellion. The fact that he is a member of the Communist Party and an officer of one of its committees is not a sufficient basis for declaring him guilty as an accomplice in the commission of the crime of rebellion.

          In the case of People vs. Hernandez, G. R. Nos. L-6025-6026 this Court held:

          ... We do not believe that mere membership in the Communist Party or in the CLO renders the members liable either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely implied advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy of action, namely actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.

          We, therefore, declare that appellant Nicanor Razon, Sr. is not guilty as an accomplice in the commission of the crime of rebellion, nor can We hold him guilty of the crime of conspiracy to commit rebellion. He should, therefore, be absolved of the charge against him in the information.

          Neither can We find him guilty of having committed a crime under the Anti-Subversion Law (R.A. No. 1700) which outlaws the Communist Party of the Philippines, because this law was enacted only in the year 1957, whereas the information against this appellant was filed on October 27, 1950. Again, in the case of People vs. Hernandez, supra, this Court held:

          On the other hand, Rep. Act 1700, known as the Anti-Subversion Act, which penalizes membership in any organization or association committed to subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants (committed 1945-1950); the Anti-Subversion Act punishes participation or membership in an organization committed to overthrow the duly constituted Government, a crime distinct from that of actual rebellion with which appellants are charged.

          10. Appeal of Marcos Medina

          Appellant Marcos Medina was arrested by MIS agents on October 17, 1950 at 1028-B, Quezon Boulevard. He used the alias Hiwara. He admitted in his written statement 64 that he was a member of the Hukbalahap Squadron 25 with headquarters at Kandating, Candaba; that he became a corporal of the Huks in 1944; and that he was a member of the Organizational Committee, Reco 4, Laguna, from 1946 to 1949. 65 In 1949, he studied at the Central Institute of Technology, and while studying, he used to help HMB couriers Lydia (alias of Alicia Villegas), and Celong (alias of Marcelino Calma) in carrying things for delivery to Commander REG of Reco 4. 66In his testimony he stated that the Organizational Committee, of which he was a member, had the duty to go to the barrios to teach and convince the people to join the HMB. 67

          Testifying in his behalf, this appellant said that he was maltreated at Camp Murphy to make him sign the statement marked as Exhibits EE to EE-4. 68 However, Sotero Morales, who was the one who investigated him, testified that Marcos Medina did not complain of any maltreatment when he was investigated. 69

          We do not agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion. There is no evidence that he actually participated in any of the raids and ambushes alleged in the information although he admitted that he was a Huk. The evidence shows that he simply helped HMB couriers. We hold, however, that his being a member of the HMB is a sufficient basis to find him guilty of the crime of conspiracy to commit rebellion, punishable under Article 136 of the Revised Penal Code. In the case of People vs. Hernandez, supra, this Court held:.

          On the other hand, membership in the HMB (Hukbalahap), implies participation in an actual uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to commit rebellion punishable by law.

          And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like soliciting contributions, or acting as courier, he

thereby becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion of uprising, in which latter case he commits rebellion.

          We therefore declare appellant Marcos Medina guilty of the crime of conspiracy to commit rebellion, and he should be punished accordingly.

          11. Appeal of Cesario Torres

          Appellant Cesario Torres was arrested by the agents of the MIS and the Manila Police on October 19, 1950 at his residence at 742 Colorado St., Manila, along with his wife, Rosenda Canlas Torres, and his co-accused, Arturo Baking. From his house the agents seized subversive documents, and articles including a typewriter, a mimeographing machine, mimeographing ink, stencils, coupon bond papers. Some of these coupon bond papers were blank but bore the signature of Luis M. Taruc.

          The evidence shows that:

          Appellant Cesario Torres used the aliases: Leo and Leodones, and he was also known as Cesario Yacat Torres. He admitted being a member of the HMB and of the CPP, that he was head of the Technical Office under the Propaganda Branch of the CPP, and as the head of that office he was in charge of typing and mimeographing the CPP documents and leaflets, and the TITIS which was the official organ of the CPP. 70

          Documents were presented during the trial which clearly prove that this appellant was in regular communication with Federico Maclang, one of the top leaders of the CPP and of the rebellion. Thus, in one letter, he explained to Maclang why the issue of the TITIS for the previous week did not come out; and in another letter he informed Maclang that he would try to make the TITIS come out every Sunday morning. 71 In a letter to Maclang dated April 6, 1950, he inquired for the number of copies of "Suliranin ng mga Familia" that should be printed; and in another letter he was requesting from Maclang P18.40 for the printing of 600 copies of the "Mapagpalaya", the official organ of the HMB. 72 Using the name Leodones, this appellant wrote subversive poems calculated to arouse popular support for the cause of the CPP and the HMB. One such poem, entitled "Ang Dalawangpung Taon Buhay ng PKP", eulogized the CPP, advocated armed revolt against the government and the liquidation of Liberals, Nacionalistas, and priests. The other poems were "Gumising Ka Kabataan", "Maiksing Kasaysayan ng Kilusang Magbubukid sa Filipinas", "Ang Ikawalong Taong Kaarawan ng Hukbong Magpapalaya ng Bayan", and "Ang Sigaw ng Bayan Api". All these poems were published in the different issues of the TITIS. 73

          We find that appellant Cesario Torres played a very vital role in the promotion of the armed struggle that was jointly prosecuted by the CPP and the HMB. He was admittedly a member of both the CPP and the HMB. His membership with the HMB alone is a sufficient basis to hold him guilty of the crime of conspiring to commit rebellion. We believe, however, that he did more than to conspire with the leaders of the HMB and the CPP to commit rebellion. He was in charge of the publication and circulation of the TITIS which was the official organ the CPP, and of the "Mapagpalaya" which was the official organ of the HMB. It is through these two organs that the people were being aroused to support the armed struggle against the government. While it is true that this appellant did not go to the field to take up arms, the provocative poems and articles that he wrote and published in the official organs of the CPP

and the HMB were just as effective to prosecute the rebellion as the guns and other weapons used by the HMB in the field.

          We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          12. Appeal of Arturo Baking

          Appellant Arturo Baking was arrested by the agents of MIS and the Manila Police on October 19, 1950 at 742 Colorado St., Manila, along with his co-accused Cesario Torres and the latter's wife, Rosenda Canlas Torres. He is the nephew of appellant Angel Baking.

          It is shown by the evidence that:

          Appellant Arturo Baking used the aliases Red Bell, Eduardo Santos, Arturo Calma and Ed. He became a member of the CPP in December 1949. 74 In August 1950 he was employed by his co-accused Cesario Torres as assistant in the publication center of the CPP at 742 Colorado St., Manila. He was one of those assigned as typist in the Educational Department of the CPP, it having been admitted by him that the publication center was under the Educational Department of the CPP. As assistant to Cesario Torres he helped in the printing, mimeographing and distribution of the TITIS, the official organ of the CPP; as well as in the printing, mimeographing and distribution of HMB documents. His work included the procurement of office supplies, and the keeping of records of CPP documents that had been printed and distributed to the different officials and organizational units of the CPP. 75 This appellant had studied and finished the prescribed secondary course of the Communist Party, and was given a certificate, "Katibayan sa Pagaaral", attesting to his having satisfactorily completed such subjects as the "History of National Liberation Movement", "Dialektika ng Materialismo", "Political Economy", "Estado at Himagsikan", and "Ang Pagkakatatag ng Partido". 76 By his own declaration this appellant admitted having made studies about communism, took rigid tests in order to be accepted to the CPP, and that he believed a communist government should be implanted in the Philippines. In his testimony, he stated that he had developed a deep-seated hatred against the agents of the law because of the predatory acts that were committed by them on poor fishermen, and that on several occasions, especially at various checkpoints, he saw the harsh treatment done by the Constabulary soldiers to civilians. He bewailed the graft and corruption in the government.77

          We have no doubt that this appellant is a confirmed communist, and that he was in full sympathy with the armed struggle being promoted by the leaders of the CPP and the HMB in order to overthrow the existing government of the Philippines. Upon appraisal of the evidence, however, We cannot agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion. We find that he was the assistant of appellant Cesario Torres, who was entrusted with the publication and distribution of the official organs of the CPP and the HMB, as well as of the printing and distribution of the documents of these two organizations. Being an assistant of appellant Cesario Tores whom We have declared to be a principal in the commission of the crime of rebellion, We hold that appellant Arturo Baking is guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of the Article 135 of the Revised Penal Code, and he should be punished accordingly.

          13. Appeal of Simeon G. Rodriguez

          Appellant Simeon G. Rodriguez was arrested by the agents of the MIS and the Manila Polioe in his house at 683 Pasaje Rosario, Paco, Manila, on October 18, 1950, along with Jose Lava, Federico Bautista, Victorina G. Rodriguez and Pedro Vicencio.

          The evidence shows that:

          Appellant Simeon G. Rodriguez used two aliases: Lakindanum (Laquindanum) and Sammy. He was a member of the National Finance Committee of the CPP since October 21, 1949. 78 When he was arrested on October 18, 1950 there were found in his house some P42,376.00 in paper currency in different denominations. Of the money that was found in his house, it was conclusively shown that 65 P100-bills, 60 P50-bills, P145.00 in PNB circulating notes and $310.00 formed part of the money that were taken from the office of the Provincial Treasurer in Sta. Cruz, Laguna, when the HMB raided that town in the night of August 26, 1950. We have stated at the early part of this opinion that on the night of August 26, 1950 some 400 Huks raided Sta. Cruz. The cashier of the office of the Provincial Treasurer was forced by the Huks at gun point to open the vault of the provincial treasury from which the Huks took some P80,600.00. It happened that the Provincial Treasurer of Laguna, Mr. Balbino Kabigting, had a record of the serial numbers of the paper money that was deposited in the provincial treasury which were taken by the Huks, and after that raid Mr. Kabigting even issued a warning to the public about the loss of the money — mentioning in the warning the serial numbers of the money taken. It was found out that the serial numbers of the 65 P100-bills, of the 60 P50-bills, of the P145.00 PNB circulating notes, and of the $310 found in the house of appellant Rodriguez tallied with the serial numbers of the paper currency that was taken from the provincial treasury of Laguna. This appellant, in his testimony, declared that the paper money whose serial numbers tallied with those paper money that were taken from the provincial treasury of Laguna formed part of the money that Jose Lava (one of the appellant herein) brought to his house. Considering the high position that appellant Lava held in the CPP and the fact that the armed operations of the HMB were promoted and directed by the Secretariat of the CPP, of which Lava was a member, and the fact that appellant Simeon Rodriguez was a member of the National Finance Committee, it is easy to understand why Jose Lava brought to this appellant that money which was taken by the HMB from the provincial treasury of Laguna. Significantly, one of the evidence presented during the trial was a receipt, dated October 5, 1950, signed by Lakindanum in favor of Com. Torres (Casto Alejandrino, a well-known HMB commander) of Reco 4, acknowledging receipt of P32,740, $310, and P145 in PNB circulating notes. 79 It could be that Jose Lava made Rodriguez prepare that receipt when he delivered the money, and the receipt was intended to be sent to Com. Torres to assure the latter that the money was delivered to Rodriguez. That receipt was among the papers seized when these appellants were arrested. This is a clear indication of the connection of appellant Simeon Rodriguez to the armed operations of the HMB, and the coordinated work of the leaders of the CPP and of the HMB in the armed uprising.

          There are other documents clearly indicating the connection of appellant Rodriguez to the HMB commanders in the field: (1) There is a letter dated October 13, 1950, addressed to Com. Lakindanum (Simeon G. Rodriguez) coming from Com. Torres (Casto Alejandrino) wherein the latter acknowledged receipt of the letter and articles that were sent to him by Com. Lakindanum. This letter also instructed Lakindanum not to send the watches to Reco 4. 80 (2) There is another letter dated October 13, 1950, of Com. Lanao, addressed to Com. Lakindanum, wherein the former was requisitioning from Lakindanum a radio set. In this letter Com. Lanao, among others, said: "We would make the attempt to provide you with an extra ration of camote leaves when you visit us again". 81 This statement in the letter of Com. Lanao indicates that appellant Simeon

Rodriguez used to visit the men in the field. (3) There is still another letter that came from Com. Amor, addressed to Com. Lakindanum, wherein the former acknowledged receipt of all the things, including a radio tester costing P30.00, that the latter had sent to him. 82 (4) Then there is a letter written by herein appellant to Com. Beria (Federico Maclang) stating that he delivered the tester to Com. Reg in the absence from camp of Com. Torres. 83 (5) There is a receipt showing that appellant Rodriguez signed in the name of the National Finance Committee, acknowledging receipt of the amount of P705.00. 84 (6) There is still another receipt signed by herein appellant acknowledging receipt of P1,200 from the National Finance Committee, which was prepared for accounting purposes. 85

          This appellant admitted, in his testimony, his close association with Jose Lava. He also said that he was inclined to believe in the tenets of communism and the use of force in case the people decide to take political power in their hands.

          We have carefully examined the evidence of the prosecution against this appellant, and also the evidence which he presented in his defense — consisting of his own testimony mainly denying the positive evidences against him and of the testimonies of witnesses vouching for his good character and the fact that he was a businessman — and We have arrived at the conclusion that this appellant is one of the top communist leaders who had promoted and maintained the armed operations of the HMB in the field. We agree with the finding of the lower court that appellant Simeon G. Rodriguez is guilty as principal in the commission of the crime of rebellion; and he should be punished accordingly.

          14. Appeal of Marciano de Leon

          Appellant Marciano de Leon was arrested, together with Angel Baking at Room 504, Samanillo Building, Escolta, Manila, on October 19, 1950. He used the aliases Mar and Marcial. At the time of his arrest, he worked in the Personnel Section at the Headquarters of the Philippine Constabulary. He admitted having supplied his co-accused Federico Bautista with government documents and confidential information regarding the HMB from the PC Headquarters. These were: 86

1. Memorandum to all PC Commander re Huk infiltration.

2. Memorandum to all PC Commanders re Loyalty Status of all PC personnel.

3. Memorandum on PC-Civilian Relations.

4. List of PC Agents and their addresses.

5. List of persons wanted by the PC.

6. Letter on the subject: "Yellow Journalism."

7. U.S. Army Technical Manuals and Field Manuals.

          We concur with what the lower court said about this appellant: "Considering the nature of the documents he admitted in his confession to have been furnished by him to Federico Bautista, the contents of his confession and the accessibility to him of those documents by

reason of his position in the Personnel Section of the Philippine Constabulary, the Court is inclined to believe that he also took part in the conspiracy to overthrow the government by armed struggle and did his bit by furnishing Federico Bautista with information and records regarding the HMB activities obtainable from the PC Headquarters." We do not agree with the lower court, however, that this appellant is guilty as principal in the commission of the crime of rebellion. Considering the top position of Federico Bautista in the CPP hierarchy, it cannot be denied that appellant Marciano de Leon, by giving the information hereinabove stated to Federico Bautista, had cooperated or helped in the prosecution of the armed rebellion. We hold this appellant guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and should be punished accordingly.

          15. Appeal of Honofre Mangila

          We find, by the evidence, that:

          Appellant Honofre Mangila was arrested on November 22, 1950 at 215 Leveriza, Pasay City. He used thealiases Miller and Tommy. He admitted being a communist — in fact, he said he was proud to be a communist — and being a member of the Central Committee of the CPP. He was also a member of the Trade Union Division (TUD) of the CPP. In the meeting of the Secretariat of the CPP on September 1, 1950, appellant Mangila was appointed auditor of funds and books of account of the National Finance Commission (NFC). 87 He actually audited the financial statements of the NFC for the months of April, May and June, 1950; Mangila's auditing of the National Finance Commission's account was approved by the Secretariat in its meeting of September 22, 1950. He was also the chairman of the organizational department (OD) for Manila under the Organizational Bureau of the CPP. 88

          There is no question that this appellant is one of the top men in the hierarchy of the CPP. He was a member of the Central Committee which is the body second only to the National Congress of the CPP. When the National Congress is not in session it is this Central Committee that makes decisions for the party. While testifying in his behalf he revealed his strong communist party discipline when he declined to reveal, upon being cross-examined, the identity of the other members of the Central Committee, and the members of the National Congress and of the Politburo. While testifying he was very outspoken in indicting the existing economic and social order in the country, and asserted that it is only under the Communist Party when the laboring class can expect a bright future.

          During the trial letters signed by "Miller" or "Tommy", were presented in evidence. Those were letters addressed to Johnny (Ramon Espiritu) and to Luming (Salome Cruz) concerning financial matters, meetings and other activities in the CPP. 89

          Considering that it is the CPP, as We have shown, that promotes and maintains the armed operations of the HMB against the government, and considering that appellant Honofre Mangila is a member of the Central Committee which is the most powerful body in the CPP when its National Congress is not in session, and considering further that this appellant was even appointed auditor to audit the funds of the CPP, We believe that this appellant is one of the principal leaders of the rebellion as charged in the information. We agree with the finding of the lower court that appellant Honofre Mangila is guilty as principal in the commission of the crime of rebellion and that he should be punished accordingly.

          16. Appeal of Cenon Bungay

          We find, by the evidence, that:

          Appellant Cenon Bungay was arrested by Vicente Roco of the 20th BCT and some members of the Manila Police on November 21, 1950, at 432 Isabel, Sampaloc, Manila. This appellant used the alias Rufing.

          In written statements, he admitted that he joined the Huks in 1946, and at the time of his arrest on November 21, 1950 he was the commander of the HMB in the province of Batangas and the G-3 of Field Command (FC) No. 3 of the HMB. While testifying in open court, he declared that as the HMB commander he had 1,300 fully armed men (equivalent to 4 HMB battalions) under him, and as a Huk commander he had been receiving directives from the higher authorities of the HMB. He revealed that Luis Taruc was the Supreme of the HMB. 90 He also admitted his direct participation in an encounter between the HMB and the government forces in Plaridel, Bulacan, on March 27, 1950. He stated that in obedience to an order from Regional Command No. 4, he led his unit in the raid of San Pablo City on March 29, 1950, resulting in the death of Maj. Alicbusan. He said that their purpose was to overthrow the government by force, and to establish the "New Democracy." 91 He also declared that he joined the Huks in 1942 because of poverty; that his parents were tenants in Hacienda Bahay Pare at Candaba, Pampanga; that he stopped schooling after the 7th grade in order to help support his parents and ten brothers and sisters; that realizing the miserable conditions of the tenants, he joined the "Aguman Ding Talapagobra" (ADT), the aim of which was the amelioration of the tenants; that through this organization he realized that the tenants must organize to promote their welfare and to prevent the abuses of landlords. He further declared that in spite of the sacrifices of the Huks for 3 years during the Japanese occupation, the Huks representing the countless tenants, were ignored by the U.S. armed forces and by the Commonwealth Government; and having been harassed, persecuted and frustrated in their aims to ameliorate the condition of the masses, the Huks went underground. According to him the Huks felt more persecuted when Luis Taruc, the successful congressional candidate in 1946 of the Democratic Alliance, was denied his seat in Congress, and that they lost faith in the government due to the frauds and terrorism perpetrated in the elections that followed. 92

          Appellant Bungay admitted that the HMB had to use force in order to change the administration. He said that the men under him used arms given by the American soldiers and Communist sympathizers. He also revealed that while he was the Huk commander at Cavite, he had two encounters with government forces, one at Aliang, Malabon on February 18, 1950; and the other at Alfonso, Cavite, on February 22, 1950. These admissions were fully corroborated by Benjamin Advincula, a ranking officer and Secretary of Reco Command No. 4 of the HMB and by Ronald Dorsey, a former Huk member. 93

          There is no doubt that Cenon Bungay, as Huk commander, was also a leader in the rebellion. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

          17. Appeal of Pedro T. Vicencio

          Appellant Pedro T. Vicencio was arrested on October 18, 1950 at 683 Pasaje Rosario, Paco, Manila, along with Jose Lava, Federico Bautista, Simeon Rodriguez and Victorina Rodriguez. He was also known as Pedring. In a statement, signed by him at Camp Murphy after

his arrest, he admitted that he used to run errands, bringing foodstuffs, medicines and other supplies intended for the HMB, and also delivering packages that were labelled R-1, R-2, R-3, R-4 and R-5, which stood for Reco-1, Reco-2, etc., respectively, to Andalucia Street where Rosario Vda. de Santos received them. 94 We have found, in this decision, that Rosario Vda. de Santos was working under Salome Cruz who was the chairman of the National Communications Division (NCD) of the CPP, and that she was in charge of an outpost, checking the irregular couriers for Recos 1, 2, 3, 4, 5 and Pangasinan, and she was staying at 1608-B Andalucia, Sampaloc, Manila.

          Testifying in his own behalf, appellant Vicencio denied being a member of the CPP nor of the HMB, although he stated that at the time of his arrest, he was studying the principles of communism, and that he sympathized with the Huks. At the time of his arrest this appellant was 20 years old, and he was a first year Liberal Arts student. He admitted in his testimony that he delivered to Angel Baking notes sent by Simeon Rodriguez. 95

          While it is not shown that this appellant actually took part in the armed operations of the HMB, his having delivered foodstuffs, medicines and other supplies which were intended for the HMB, and his having delivered packages to Rosario Vda. de Santos who was in charge of the outpost where couriers go to deliver, or to get, letters or articles intended for RECOS in the field, clearly indicate that this appellant was actively cooperating in the efforts of those promoting the rebellion. Being 20 years of age and a college student, it can be expected that he knew that he was doing something for the communists and the Huks. More so, because he was living with Simeon G. Rodriguez, one of the top leaders of the CPP. He admitted having delivered notes sent by Simeon Rodriguez to Angel Baking, another top leader of the CPP. The house of Rodriguez was the meeting place of CPP leaders.lawphil.ñet

          We find this appellant guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and he should be punished accordingly.

          18. Appeal of Felipe Engreso

          Appellant Felipe Engreso was arrested on October 18, 1950 at 1938 Int. 7, Felix Huertas St., Manila, along with Federico Maclang and Julita Rodriguez. At the time of his arrest, he was about 15 years old, and was living as a houseboy of one known to him as Ambrosio Reyes.

          It appears that in a written statement that he signed before the MIS agents, this appellant admitted having delivered letters to Mr. Espiritu (Ramon Espiritu) at Andalucia St., Manila; to Cesar (Cesario Torres) at 742 Colorado, Manila; and to Gaston (Jose Lava) at Celeridad St., Pasay City. It also appears in that statement that he used to get the TITIS from Colorado St. (residence of Cesario Torres and the CPP publication center) to deliver them to Andalucia Street (residence of Ramon Espiritu, Salome Cruz and Rosario Vda. de Santos) and retained one copy for Ambrosio Reyes. 96

          Testifying in his behalf, appellant Engreso declared that before his arrest he never knew that his master, Ambrosio Reyes, is the accused Federico Maclang. He came to know his master to be Federico Maclang only when they were already detained at Muntinglupa. 97

          Upon a careful study of the evidence against this appellant, We have come to the conclusion that his guilt has not been proved beyond reasonable doubt. This appellant was only

around 15 years old. We accept his testimony that he did not know that his master was Federico Maclang, and that all the time he knew him to be Ambrosio Reyes. He was simply a houseboy of Maclang. He had to obey orders to deliver letters or deliver copies of TITIS. There is no showing that he knew the contents of the letters that he was made to deliver, or that he knew the addressees to be communists. The Solicitor General recommends the acquittal of this appellant upon the ground that there is no sufficient evidence to show his criminal intent. We agree with the Solicitor General. We, therefore, acquit appellant Felipe Engreso of the charge against him in the information.

x x x           x x x           x x x

          IN VIEW OF THE FOREGOING, the decision appealed from should be, as it is hereby, modified, as follows:

          1. In G.R. No. L-4974

          Appellants Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz and Angel Baking are found guilty as principals in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and every one of them is hereby sentenced to suffer imprisonment for ten (10) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay their proportionate shares of the costs.

          Appellant Rosario C. Vda. de Santos is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and she is hereby sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor, with the accessories provided by law, and to pay her proportionate share of the costs.

          2. In G.R. No. L-4975

          Appellant Cesario Torres is found guilty as principal in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and he is hereby sentenced to suffer imprisonment of ten (10) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs.

          Appellants Lamberto Magboo and Arturo Baking are found guilty as participants in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and every one of them is hereby sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor, with the accessories provided by law, and to pay their proportionate shares of the costs.

          Appellant Marcos Medina is found guilty of the crime of conspiracy to commit rebellion under Article 136 of the Revised Penal Code, and he is hereby sentenced to suffer imprisonment of five (5) years, four (4) months, and twenty (20) days of prision correccional and a fine of P2,000, with the accessories provided by law, with subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs.

          Appellant Nicanor Razon, Sr. is hereby acquitted, with costs de oficio.

          3. In G.R. No. L-4976

          Appellant Simeon G. Rodriguez is found guilty as principal in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of ten (10) years of prision mayor and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs.

          Appellant Marciano de Leon is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor with the accessories provided by law, and to pay his proportionate share of the costs.

          4. In G.R. No. L-4977

          Appellants Honofre Mangila and Simeon Bungay are found guilty as principals in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and every one of them is sentenced to suffer imprisonment of ten (1O) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay their proportionate shares of the costs.

          5. In G.R. No. L-4978

          Appellant Pedro T. Vicencio is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and is sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor, with the accessories provided by law, and to pay his proportionate share of the costs.

          Appellant Felipe Engreso is hereby acquitted, with costs de oficio.

          The Court takes judicial notice, that, except for appellants Lamberto Magboo, Nicanor Razon, Sr., Pedro T. Vicencio, and Felipe Engreso who are on provisional liberty under bail, all the rest of these appellants are detained, and their detention dates back as of August, October or November, of the year 1950, as the case may be. The Director of the Bureau of Prisons is hereby directed to determine the period of detention that should be credited to the appellants who are under detention, pursuant to the provisions of Article 29 of the Revised Penal Code, and to release immediately those appellants who are entitled to be credited with the period of their detention equal to the penalty of imprisonment imposed upon them in this decision. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Sanchez and Capistrano, JJ., concur.Teehankee and Barredo, JJ., took no part.Concepcion, C.J., and Castro, J., are on leave.

Separate Opinions

FERNANDO, J., concurring:

          I join my colleagues in giving assent to the well-written and exhaustive opinion of Justice Zaldivar, speaking for this Court, distinguished as it is by grasp of the relevant facts meticulously examined and narrated with clarity as well as of the controlling legal principles that call for application. Particularly noteworthy to my mind is the re-affirmation of our doctrine in People v. Hernandez, 1 with the present Chief Justice, who penned the opinion, stressing the primacy of liberty even when the offense charged is against the security of the state.

          Precisely because of what I deem to be high estate that must be accorded liberty even in times of trouble and distress, I feel that additional words might not be amiss. It would appear to me that the prosecution of the accused herein having been started at a time when there appeared to be a clear danger to democratic institutions, the belief seemed to have gained credence in certain circles that as far as these accused were concerned, there was no need to apply with rigor their constitutional rights.

          That to me is a false thesis. It implies the weakness of a democracy to defend itself democratically. Under such view, a government could be spared the threat from internal subversion, but what is saved is no longer the government contemplated by the framers and the people who adopted the Constitution.

          Well has Justice Bengzon observed in his separate opinion in Nava v. Gatmaitan: 2 "And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence to the principles of the Constitution together with an impartial application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges which the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, "the Courts will favor personal liberty" ..."

          Justice Tuason in another opinion rendered in that case would apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called "judicial statesmanship." The legislature itself cannot infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights." 3

          It is extremely difficult to find cause for disagreement with the above views for they accord with the fundamental postulate of this Government, namely, that the Constitution is supreme and this Court, as its ultimate guardian, is called upon to apply its provisions in the determination of actual cases and controversies before it. Well has it been observed that it exists precisely to assure the protection of the citizen and the maintenance of his constitutional rights. The exercise of this official duty requires that it gives effect to the supreme law even to the extent in clear cases of setting aside legislative and executive action.

          This is not to say that the judicial process takes place in a social void. The existence of an emergency is not a factor to be reckoned with lightly. The task of this Court in adjusting or harmonizing individual rights with the safety of the state, ordinarily one of utmost delicacy, then becomes even more formidable. The fact remains however that the regime established here is one of liberty of justice and of democracy. Belief in the theory of liberty is not merely an echo of a discredited past. It remains a fighting faith. It is a proclamation of the vitality of the democratic process. It rests on the conviction deeply and profoundly held that given the choice, a free people will prefer to remain free.

          This is not to deny that force has to be met with force. This is not to deny that the courts are not to hamper the efforts of the executive agencies to put down subversion in whatever form it may manifest itself and wherever it may make its appearance. This is not to deny that on the executive and its agents is conferred the authority to cope with rebellious activities. Such authority must be equal to the grave responsibility thus confronting it.

          Nonetheless, even under such circumstances, our duty is clear. It is not for us to abdicate our constitutional function. We cannot, just because of the danger sanction every step the executive authorities might take. If we do so, we would lend comfort to the very forces seeking to undermine the government. They can assert, and with plausibility, that the Constitution no longer obtains. It is precisely in times of emergency that the role of the judiciary as guardian of constitutional rights becomes more pressing and inescapable, if the faith and confidence of the people in democracy in action are to be preserved unimpaired.

          Since to my mind such a view is implicit in the opinion of Justice Zaldivar, even if not expressly avowed, I yield my concurrence.

Footnotes

1G.R. Nos. L-6025 and L-6026, July 18, 1956; 99 Phil. 515, 520, 541, 547, 551.

299 Phil. 515, 535.

3Appellee's brief, pp. 180-182.

4People vs. Camerino, L-13484, May 20, 1960; U. S. vs. Cernias, 10 Phil. 682.

5U. S. vs. Santiago, 41 Phil. 793.

6People vs. Hernandez, supra; People vs. Romagosa, supra; and People vs. Santos, supra.

13Sec. 23, Rule 132, Rules of Court.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs.FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs.HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs.

BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO,respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs.BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs.THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

R E S O L U T I O N

 

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule — as many misunderstood it to do — that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing lawsto the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is

elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people — not the Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine ofGarcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without

warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest,

without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked

them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence

of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section

5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL.

SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

 

Separate Opinions

 

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the, majority's resolution on said motions for reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu mav not be considered as having "just committed" the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the

government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of government offices trie assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed. "connotes immediacy in point of time and excludes cases under the old rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer's personal knowledge such subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should "clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be

valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could stand judicial scrutiny — to pinpoint a subversive, police officers usually have to make long persistent surveillance. However, for the orderly administration of government and the maintenance of peace and order in the country, good faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable both administratively and criminally for abuses in the performance of their duties. Victims of abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.

xxx xxx xxx

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied to actual cases. I doubt if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation's interest in the liberty to fully anfd freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term "inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the continuing offenses of rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted with approval in the originalponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these — in our country — are whose embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the "exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders — or combatants — is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside front their essentially involving a massive conspiracy of nationwide manitude. (Emphasis supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed, he may at any time be arrested without warrant on the specious pretext that he is in the process of committing the "continuing offense," no matter that what he may be actuallly doing at the time is a perfectly innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on "confidential information" that he

was in the hospital, which information "was found to be true." This is supposed to have validated the determination of the officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago." The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed.

I am also uneasy over the following observations in the present resolution which I hope will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon wmch the arresting officers based their arrests without warrant, are supported by probable cause, i.e., that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may have been influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights

were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by the majority principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III Section 2 of the Constitution reads:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113 follows:

Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception. 1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court. these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)

held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable. 4

In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: 1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to

have been committed "in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by another person, no matter what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled the ground, he has personal knowledge of facts which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously render pointless the requirement in Section 5(a) that the crime must have been committed "[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by examining the evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense "has in fact just been presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained. (Emphasis supplied)

9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, doesnot dispence with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense taken place within the territorial jurisdiction of one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by reason of he very nature of the offense committed" the violation of the law is deemed to be "continuing," then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the

double jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" 13

a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such association or organization in any form whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

xxx xxx xxx

f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization;

xxx xxx xxx

k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization;

xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is

not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has personal knowledge of the facts indicating that the arrestee is responsible for an offense which has just been committed.

Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the

warrantless arrest, is the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the reasons above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and that the military did have personal knowledge that he had committed it. "Personal knowledge," according to the majority, is supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is supposedly reasonable:

. . . when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilty of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean mere "membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge means exactly what it says — that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple "reasonable ground" — which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . ." 8 I do not see how We can act differently here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good faith, the

arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse, because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169, hospital establishments are required to report cases of acts of violence to "government health authorities" — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere tip-the military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediate arrests were "prudent" and necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the petitioner's arrests.

More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.14

And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the accused.

First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question I do not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my mind plain, because it does not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the very question before the Court—whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue: "But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day" "soon thereafter". Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because it is supported by no authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we were talking of "simple" arrests.

I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory construction in general), and I feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the

military should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges 24 — today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye II" 25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative measure" alone—we are talking ofarrests, of depriving people of liberty—even if we are not yet talking of whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance of the petitioners' predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the military's action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see how this court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels." 28 First and foremost, and as the majority has conceded, we do not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old hat — the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law — that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to offer a small consolation, when after all, this Court is

validating their continued detention. 30 With all due respect, I submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The State has no right to bother citizens without infringing their right against arbitrary State action. "The right of the people," states the Constitution, "to be secure in their persons, houses, papers, and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person and guarantees full respect for human rights." 32 The Constitution states the general rule — the majority would make the exception the rule, and the rule the exception. With all due respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the "actual facts and circumstances" being no more than "confidential information" (manufactured or genuine, we have no way of telling) and in the second place, any information with which the military (or police) were armed could no more than be hearsay, not personal, information. I submit that the "actual facts and circumstances" the majority insists on can not justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless because the police supposedly "found out only later." I submit that the majority has read into Section 5(b) a provision that has not been written there.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is important is that the Court be right." 33

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of whether or not this Court, in approving the military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by the military since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.

Motions denied.

# Footnotes