Republic of the Philippines SUPREME COURT

Manila

En Banc Copy No. ___

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, G.R. No. 182555

- versus – (CA-G.R. CR HC No. 00667, ABADILLA MURDER CASE) PEOPLE OF THE PHILIPPINES, Respondent. x -----------------------------------------x

REPLY TO THE O.S.G. COMMENT

PETITIONERS, through counsels, unto this Honorable Court,

respectfully interpose this Reply to the Office of the Solicitor General’s

Comment dated October 6, 2008, as follows:

OUTLINE OF REPLY DISCUSSION

I. Failure of Appellate Review

II. Over-reliance on One Alleged Eyewitness

III. Misappreciation of Alibi Defense

IV. Undue Disregard of Other Vital Evidence

V. Unconstitutional Penalty

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

I. FAILURE OF APPELLATE REVIEW

In Reply to the OSG Comment on this issue, we shall tackle it on two

levels:

1. on the level of the Court of Appeals (CA) not making a real and

honest review of the appealed case as shown mainly by its Decision dated

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April 1, 2008 (Annex A to the Petition, hereinafter “CA Decision”) merely

copying the meat of the OSG’s “Consolidated Appellee’s Brief” dated May

31, 2004 (Annex C to the Petition, hereinafter “OSG Brief”); and

2. on the level of the CA Decision’s misappreciation of the facts

based on its wholesale reliance on the version of the facts in the OSG Brief.

To try to wiggle out of the shameful spectacle of a CA Decision’s

wholesale copying verbatim the “Counter-Statement of Facts” and

“Arguments” of the OSG Brief in a major murder case, the OSG Comment

cites (at pp. 11-12) two Supreme Court (SC) Decisions, Hernandez vs. CA1

and BPI vs. Leobrera2 that appear to allow the adoption and copying from

the briefs or memoranda of the parties. What the OSG Comment omitted,

among others, was the information that those were cases of estafa and of

reconveyance of property with damages, respectively, where the CA had

exercised original appellate jurisdiction from Decisions of the Regional Trial

Court (RTC). (Incidentally, the OSG represented the respondent People of

the Philippines in the Hernandez case.)

The case at bar is a major murder case where the “Abadilla 5”

accused-appellants had been convicted and sentenced to death by the RTC,

was brought up directly to the SC on automatic review, and then after five

years there transferred to the CA for intermediate review pursuant to the

ruling in People vs. Mateo3. That ruling was made “to ensure utmost

circumspection before the penalty of death, reclusion perpetua or life

imprisonment is imposed… Where life and liberty are at stake, all possible

1 228 SCRA 429 (1993). 2 375 SCRA 81 (2002). 3 433 SCRA 640 (2004).

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avenues to determine his guilt or innocence must be accorded an accused,

and no care in the evaluation of the facts can ever be overdone.”4

This qualitatively different factual context of and appellate review

guidance for the case at bar only underscores what the OSG Comment again

omits to quote from its own cited cases. The OSG Comment omits this from

BPI vs. Leobrera: “we rule that though it is not a good practice, we see

nothing illegal in the act of the trial court completely copying the

memorandum by a party…”5 (boldface type ours) Granting without

admitting “nothing illegal,” but definitely “it is not a good practice.” If it is

not a good practice for the “trial court,” then with more reason is it not so for

the appellate court. If it is not a good practice in a civil case for

reconveyance of property with damages, then with more reason is it not so

for a criminal case for murder, a major one at that, with five death penalties.

The OSG Comment also omits this from its own cited Hernandez

case: “We note that aside from adopting the statement of facts of the

Solicitor General, the Court of Appeals also made findings of fact in the

course of its discussion of the assignment of errors.”6 In the case at bar, the

CA did not also make its own independent judicial findings of fact because

its discussion of the assignment of errors is actually not its own but merely

copied verbatim from the OSG Brief.

In fine, the CA did not meet the requisite higher standard of decision-

making fitting for a “higher court,” the second highest collegiate appellate

court charged with the intermediate review of death penalty, reclusion 4 Ibid. at 656. 5 375 SCRA 81, at 86. 6 228 SCRA 429, at 435.

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perpetua or life imprisonment cases. Relevant to the case at bar, we might

say that certain canons of the New Code of Judicial Conduct for the

Philippine Judiciary7 apply even with more reason, to cite a few:

CANON 1 INDEPENDENCE

SECTION 1. Judges shall exercise the judicial function independently on

the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.

SEC. 5. Judges shall not only be free from inappropriate connections

with, and influence by, the executive and legislative branches of government, but must also appear to be free therefrom to a reasonable observer.

SEC. 8. Judges shall exhibit and promote high standards of judicial

conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence.

CANON 3

IMPARTIALITY Impartiality is essential to the proper discharge of the judicial office. It

applies not only to the decision itself but also to the process by which the decision is made.

(boldface type and underscorings ours) Where the CA Decision, as in the case at bar, copies verbatim the

“Counter-Statement of Facts” and “Arguments” of the OSG Brief as the

veritable meat, including ratio decidendi of that Decision in a major murder

case, it would be hard for a reasonable observer to believe that the justice(s)

concerned were free from influence by the executive branch represented by

the OSG. The “high standard” is not only “free” from such influence “but

must also appear to be free therefrom.” And that high standard “applies not

only to the decision itself but also to the process by which the decision is

made.” In the case at bar, the CA Decision, which copies verbatim the

“Counter-Statement of Facts” and “Arguments” of the OSG Brief, is not 7 A.M. No. 03-05-01-SC, 27 April 2004.

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made “independently on the basis of their [the concerned justice(s)]

assessment of the facts” nor “in accordance with a conscientious

understanding of the law.” We shall say more about this in a while.

But we must first relate the discussion at this point to the judicial

reform spirit of the SC’s recent rulings on the CA scandal arising from the

Meralco-GSIS Case.8 The SC’s Per Curiam Decision stated at the outset:

… For judicial decisions, which form part of the law of the land, to be credible instruments in the peaceful and democratic resolution of conflicts, our courts must be perceived to be and, in fact be, impartial, independent, competent and just. To accomplish this end, it is imperative that members of the Judiciary from its highest magistrates to its humblest employees adhere to the strictest code of ethics and the highest standards of propriety and decorum. Indeed, it is unfortunate that one of the country’s second highest courts, the Court of Appeals, should be presently embroiled in scandal and controversy.9

It is the OSG Comment which is “specious” when (at p. 13) it argues

thus: “Consequently, it cannot be begrudged if in the act of resolving a case

the court would side with a party and give full weight and credit to its

arguments. This is but a regular part and parcel of decision making,

considering that in any dispute, most of the time, only one party has to

prevail.” But in the case at bar, the CA conferred the monopoly of truth

(contrary to what is regular in real life) on the OSG by wholesale adopting,

nay copying verbatim, its version of the facts and its arguments. If this is not

a violation of the judicial canons of independence and impartiality, then it is

at least a violation of the judicial canons of competence and diligence – for it

shows that the concerned justice(s) were either incapable or too lazy to make

their own assessment of the facts as well as a conscientious application of

the law to the issues in a major murder case.

8 Re: Letter of Presiding Justice Conrado M. Vasquez, Jr. on CA-G.R. SP No. 103692 [Antonio Rosete, et al. v. Securities and Exchange Commission, et al.], A.M. No. 08-8-11-CA, Decision of September 9, 2008 and Resolution of October 15, 2008. 9 A.M. No. 08-8-11-CA, Decision of September 9, 2008, pp. 1-2.

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In the discussion of this matter/issue in our Petition (at pp. 5-14), the

point is not so much the wholesale copying verbatim by the CA Decision

of the key and long sections on facts and arguments in the OSG Brief, which

is shameful enough, but more fundamentally what that indicates in terms

of the absence of a real and honest review of the appealed case, thus

rendering the Decision void as a grave miscarriage of justice. We need not

repeat that discussion in our Petition which shows indicia of that failure of

appellate review as well as the international human rights law and

jurisprudence on this.10 We might just add now how the latter discourse is

all the more fitting as we mark the 60th anniversary of the Universal

Declaration of Human Rights this December 10.

Insufficient Findings of Fact

We go now to the second level of discussion: the CA Decision’s

misappreciation of the facts based on its wholesale reliance on the

prosecution’s version of the facts in the OSG Brief. The OSG Comment

contends (in p. 12) that the CA Decision’s copying of the version of the facts

in the OSG Brief is of no moment as long as that Court assessed it to be

“sufficient findings of fact” on which to base the Decision. But a perusal of

the statement of facts in pp. 1-2 of the CA Decision (Annex A to the

Petition), which it prefaced with “The Solicitor General narrated the

People’s version of the facts as follows,” is grossly insufficient, especially

when compared with the statements of facts in the four briefs for accused-

appellants. 10 The New Code of Judicial Conduct for the Philippine Judiciary, Canon 6 on “Competence and Diligence,” Sec. 4 provides that “Judges shall keep themselves informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.”

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The said statement of facts in the CA Decision, which was wholly

copied verbatim from the “Counter-Statement of Facts: Prosecution’s

Evidence” in pp. 11-13 of the OSG Brief (Annex C to the Petition), basically

states only the vantage point of the prosecution’s lone alleged eyewitness,

security guard Freddie Alejo. No wonder then that the CA Decision is one

affirming conviction based solely on the testimony of this alleged

eyewitness. The said statement of facts leaves out so many material and

relevant facts. If we just take for comparison the “Statement of Facts” in pp.

14-20 of the “Brief for Accused-Appellants Lenido Lumanog and Augusto

Santos” of October 2003 in the original SC automatic review case (G.R. No.

141660-64), there are these among other important facts left out by the

CA and OSG in their common statement of facts:

(a) about the police investigation of the Abadilla ambush-killing;

including the gathering of spent shells and slugs and of fingerprint samples

for forensic examination, the rough sketching of the crime scene, and the

taking of statements from at least five various witnesses and informants

(b) about the several accused-appellants and some companions, their

whereabouts and activities shortly before and after the crime was committed;

the circumstances of their warrantless arrests, incommunicado detention in a

safehouse, torture and coerced confessions

(c) about the much later subsequent turning over to “running priest”

Fr. Roberto Reyes by a known Alex Boncayao Brigade (ABB) personality of

Abadilla’s wrist watch taken from him during his ambush-killing claimed by

the ABB

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These left-out facts are all crucial for the “care in the evaluation of

facts… if only to ensure utmost circumspection… to determine his guilt or

innocence… where life and liberty are at stake,” as mandated by the Mateo

ruling11 which brought the case at bar to the CA for intermediate appellate

review. Stated otherwise, such left-out facts are important at getting at the

“the truth, the whole truth, and nothing but the truth” which is the only

sound basis of justice.

Indeed, as the OSG Comment says (at p. 11), “The constitutional

mandate only requires that the decision should state the facts and the law on

which it is based.”12 In the case at bar, the CA Decision’s wholly copying

verbatim from OSG Brief’s “Counter-Statement of Facts: Prosecution’s

Evidence,” involves failure to narrate the facts accurately in relation to the

“whole truth.” By borrowing lock, stock and barrel the prosecution’s

version of the facts, the CA has come to be misled, and is now itself

misleading, by omissions of material facts. The CA has thus failed in its

duty to state all the material facts accurately and base its inferences thereon.

What is this if not failure of appellate review?

II. OVER-RELIANCE ON ONE ALLEGED EYEWITNESS

Petitioners submit that the reviewing tribunal failed to perform its

bounden duty of reviewing a death penalty case by adopting the trial court’s

reliance on the testimony of Freddie Alejo without addressing petitioners’

arguments assailing Alejo’s credibility.

11 433 SCRA 640, at 656. 12 1987 Constitution, Art. VIII, Sec. 14: “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.”

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The OSG Comment states that Freddie Alejo is a credible witness and

that his positive identification of the petitioners in open court is

“unimpeached and impeccable.”

How can Alejo be an impeccable witness and how can his positive

identification be unimpeached when the trial court itself found his testimony

unbelievable with regards to Lorenzo de los Santos’ participation in the

crime complained of?

The trial court acquitted Lorenzo de los Santos despite the “positive

identification” made in open court by Freddie Alejo, who was even emphatic

in testifying that Lorenzo de los Santos was the suspect whom he saw

walking to and fro in front of his guardhouse an hour before the shooting

incident and that Lorenzo de los Santos pointed a gun at him.

Freddie Alejo identified Lorenzo de los Santos twice: first, in a police

line up and second, in open court. Despite these identifications made by

Freddie Alejo of Lorenzo de los Santos, the court still acquitted Lorenzo de

los Santos. If the trial court acquitted Lorenzo de los Santos despite Alejo’s

identification of Lorenzo de los Santos as the person who has been walking

to and fro in front of his guardhouse and as the suspect who pointed a gun at

him, this means that the evidence of Freddie Alejo on that issue was

considered by the trial court as not worthy of being believed. Does this

not erode Freddie Alejo’s credibility? It does. And it does so seriously and

critically as it directly pertains to Alejo’s identification of the perpetrators of

the crime.

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If the lower court did not give credence to the evidence given by

Freddie Alejo, therefore, the Solicitor General cannot claim that Freddie

Alejo is an impeccable witness.

Relying on the evidence of a single witness who the trial court itself

refused to believe to an extent of acquitting a person despite of identification

by this witness is fundamentally flawed.

The appeal court was right on the first premise in the logical

syllogism, that is that the evidence of a single impeccable witness is

sufficient to rest a conviction. However, the Court of Appeals failed to

consider the entirety of the syllogism:

The evidence of a single impeccable witness is sufficient to rest a conviction. That Freddie Alejo is an impeccable witness. Therefore the evidence of Freddie Alejo is sufficient to base a conviction. It is the second premise of this syllogism, that is: That Freddie

Alejo is an impeccable witness, that the petitioners have challenged and

that is the issue that the CA should have dealt with. The petitioners’ plea

to the Honorable Court now is that Freddie Alejo is not an impeccable or

credible witness but that his evidence is seriously flawed. Therefore the

conclusion that the CA should have arrived at is that: The court cannot

base its conviction on the basis of a single witness that is not credible.

Freddie Alejo is not a credible witness (as shown in evidence) therefore the

lower court should not have based its judgment on the sole evidence of his

testimony.

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Petitioners have also put forward the following arguments to assail

Alejo’s credibility:

• The earlier sworn statement made by Freddie Alejo omitted material details which were overly emphasized in his testimony about the two men walking to and from in front of his guard post prior to the shooting incident;

• Discrepancies between the sworn statement and the testimony in open

court on his sworn statement and in open court;

• Physical attributes of accused do not match the descriptions made by Freddie Alejo in his sworn statement, rendering him an unreliable witness and casting not just a reasonable but a very serious doubt as to whether the accused are the very same persons Freddie Alejo saw committing the acts complained of, or stated differently, whether Freddie Alejo’s cursory pointing to the accused in court can be considered positive identification at all;

• Incredibility, to the point of being beyond the capability of any human

being, of Freddie Alejo’s testimony that while one of the assailants was pointing a gun at him, all the other suspects faced him simultaneously from different locations, allowing him to see all the suspects’ faces for less than a minute, which became the basis of his identification of the purported assailants;

• Discrepancies between the sworn statement and the testimony were

never explained by the prosecution, seriously eroding Freddie Alejo’s credibility as a witness; and

• Freddie Alejo received benefits from the family of the victim, making

him a paid witness whose testimony should be scrutinized with the strictest measures to ensure that no one should go punished based on the testimony of a witness who would obey the wishes of those who give him favors for fear of losing the benefits he is receiving.

The OSG Comment tries to explain the discrepancy between the four

assailants stated in Alejo’s Sworn Statement and his testimony in open court,

increasing the assailants to six, by saying that the four are the actual gunmen

and the two were lookouts. The question remains: Why did Alejo fail to

mention anything about the two lookouts immediately after the shooting

incident when he was interrogated by the police officers?

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The OSG Comment also points to the ocular inspection conducted by

the judge who manifested that he can see clearly the car and the faces of the

people standing beside the car. The judge’s manifestation cannot be taken to

be the same kind of view that Freddie Alejo had during the actual shooting

incident. Freddie Alejo declared in open court that he saw the suspects’ faces

for less than a minute. How can Alejo possibly memorize the faces of four

individuals whom he had not previously seen or known? If Alejo was

mistakened in pointing to Lorenzo de los Santos as the person who was

walking to and fro in front of his guardhouse and who pointed a gun at him,

(meaning Alejo saw this suspect longer and that he deliberately observed the

actuations of this suspect who was walking to and fro in front of his

guardhouse) how much more can Alejo not be mistakened in remembering

with certainty the faces of the other suspects whom he claimed to have seen

for less than a minute?

All these arguments assail Freddie Alejo’s credibility. Why were these

not addressed in the CA Decision?

The OSG Comment is correct in saying that “In determining the value

and credibility of evidence, witnesses are to be weighed, not counted.” We

say that in this case, Freddie Alejo’s credibility was not weighed properly by

the reviewing tribunal which failed to address any of the arguments raised

by petitioners assailing Freddi Alejo’s credibility.

That the CA Decision never treated any of these arguments is a clear

indication of the failure of the reviewing tribunal to perform its sacrosanct

function, thereby denying petitioners a meaningful review of their case.

13

Before proceeding to the next issue, we deem it useful to attach as

Annex H -- the two newspaper opinion pieces critical of the “positive

identification by a lone witness” doctrine, referred to in footnote 30 of page

32 in our Petition, including the column piece of Solita Collas-Monsod

which touched particularly on the herein CA Decision.

III. MISAPPRECIATION OF ALIBI EVIDENCE

The reason for dismissing the alibi evidence of Augusto Santos is that

there is nothing except the testimony of Jonash Padel Ayhon to support the

alibi that at the relevant time Augusto was with him. This assessment goes

against the very heart of the argumentation in the judgment. If an entire case

against five accused can be based on a single evidence of one person Freddie

Alejo why is it not possible to base the argument of an alibi on one person’s

evidence?

In the case of the burden of proof, the burden of the prosecution is to

prove the case beyond reasonable doubt. In the case of the proving of an

alibi the burden of proof is on the balance of probability. If the evidence of

Augusto Santos is to be disbelieved it should be on the basis of the

assessment of his evidence and should not be on the basis that it is a single

person that supports the alibi of the defense. Once again the issue should

have been to assess the evidence of Jonash Padel Ayhon like that of any

other person and to evaluate as to whether the prosecution has been able to

successfully demolish the credibility of the witness. There has been no

assessment of evidence on that basis. Therefore the rejection of his evidence

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on the basis that his is the sole evidence in support of the alibi is without

merit.

It also does not stand to logic to exclude the evidence of a person

solely because he was a relative.

It is in the natural course of things that people attend to various things

together with their close family members or relatives. There is no

evidentiary rule that the evidence of such persons has to be excluded. If the

prosecution believed that the evidence of Jonash Padel Ayhon needed to be

challenged the prosecution should have elicited contradictions and other

material in order to contradict the witness. The request to court to reject the

evidence of someone simply because he is a relative is to exclude relatives

giving evidence in collaboration which would make the administration of

criminal justice ridiculous. A man who is accused of committing a crime in

some place may claim that he was sleeping in his house at the relevant time

and call his wife to collaborate his evidence. If he is prevented from doing so

he may not be able to bring any other witness because under normal

circumstances no other person would be worried as to find out where

someone is sleeping at night. If the evidence of the wife is to be contradicted

it should be seriously contradicted on material evidence and the balance of

probability of which version is more probable. In this particular case a

single eye witness who had not previously known Augusto Santos claims

that he recognized the accused in the crime scene. On the other hand a

relative of this accused claims that he was at the time with him

elsewhere. If the court is to believe the evidence of the prosecution

witness Freddie Alejo the court must believe it beyond reasonable

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doubt. If the court is to believe the evidence of Jonash Padel Ayhon it

has to do so in the balance of probability. Since the prosecution has not

been able to contradict the evidence of Jonash Padel Ayhon the court

could have safely concluded in the balance of probability this witness

can be believed. To say the evidence of a relative is to be rejected simply

because he is relative is a legal absurdity.

Besides Augusto Santos has presented other documents including a

medical certificate issued by the hospital where his sister was for giving

child birth and where he had gone at the relevant time was also presented to

court. That was additional collaborative evidence if there was any need for it

in support the evidence of Jonash Padel Ayhon.

As for the alibi of Lumanog, the position of the OSG is that as Freddie

Alejo is an eyewitness against this accused the testimony of the witness to

the alibi of Lumanog should be rejected. This begs the question again. It is a

contest between someone who claims to be an eyewitness of seeing the

accused at the scene of the crime and another who claims that the accused

was elsewhere at the time. It is the prosecution witness that has the heavier

burden to make the court believe that his evidence is true. To reject the

evidence in favor of an alibi for Lumanog because of the evidence of

Freddie Alejo is to request the court to believe Freddie Alejo. The fact that

there is an alibi would have required even a stricter proof on the part of the

prosecution that the identification by Freddie Alejo can be believed

irrespective of such alibi.

Requiring additional corroborating evidence from the accused to

establish his whereabouts would be increasing the burden of proving his

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innocence, which is constitutionally presumed, in the first place. Giving

more weight to Freddie Alejo’s testimony that is uncorroborated by any

other evidence would be relaxing the burden of proving any man’s guilt

beyond reasonable doubt.

IV. UNDUE DISREGARD OF OTHER VITAL EVIDENCE

In Reply to the OSG Comment on this issue, we shall address several

relevant aspects:

1. ballistics evidence and the ABB angle

2. the ruling in Lumanog vs. Salazar, Jr.13

The OSG Comment states (at p. 20), “They [Petitioners] argue that

ballistics evidence presented during the trial constitutes one of the most

reliable forms of physical evidence in crimes involving gunshots…. The

contention is untenable.” Is the OSG saying that it does not believe in the

reliability of ballistics evidence? Even in this day and age of CSI (Crime

Scene Investigation) with its premium on forensic science? No wonder the

criminal investigation and justice system in the Philippines is what is.14

First of all, as discussed in our Petition (at pp. 22-33), it is not only

ballistics evidence that points to the ABB angle and to the innocence of the

accused-appellants. Listed in pp. 27-28 of our Petition are 10 sets or pieces

of various evidentiary material pointing to the true responsibility of the ABB

for the Abadilla ambush-killing, with no showing that the accused-appellants

were involved with the ABB. In addition, there is the dactyloscopy

13 364 SCRA 719 (2001). 14 See e.g. “Special Report: The criminal justice system of the Philippines is rotten,” article 2 (journal of the Asian Legal Resource Centre), Vol. 6, No. 1, February 2007.

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(fingerprint) evidence, the testimony of the other security guard eyewitness

Merlito Herbas, and their alibi evidence which all show the non-involvement

of the accused-appellants in the killing incident. It is not just “newspaper

articles and alleged military/police intelligence reports pointing to ABB

participation,” as misleadingly alleged by the OSG Comment (at pp. 21 &

22).

All or even most of these, taken together, ranged against the lone

alleged “positive identification” by prosecution witness Alejo, are and

should have been enough to create at least reasonable doubt of guilt, if not

certainty of innocence, of the accused-appellants. Again, this is what the

Mateo ruling which brought the case at bar to the CA mandates: “care in the

evaluation of facts… if only to ensure utmost circumspection… to determine

his guilt or innocence… where life and liberty are at stake.”15 And again,

we must speak of the need to determine the “whole truth” from all the

material facts and evidence. These might be likened to pieces of a puzzle:

when the pieces are viewed individually do not seem significant (inc. some

which may appear technically to be “hearsay”) but when all put together

properly would complete a coherent picture.

Going to the ballistics evidence in particular, there are two sets of

evidence pertaining to the ballistics examination on the spent shells and

slugs recovered from the crime scene and from the dead body of the ambush

victim Abadilla (which we can call “the control set”): (1) one set in

comparison with ballistic examination of firearms found in the possession of

some accused-appellants (finding no match with the control set); and (2)

15 433 SCRA 640, at 656.

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another set in comparison with ballistic examinations of spent shells and

slugs recovered from the crime scenes and from the dead bodies of victims

in other similar ambush-killings attributed to the ABB (finding a match with

the control set). In pp. 25-26 of our Petition, we already pointed out that the

CA Decision (actually the OSG Brief it copied) dealt only with the first set,

not the second set, of the ballistics evidence, and in both cases sorely

missing the evidentiary point. So, we need not repeat ourselves here.

We now state some important additional points. Aside from what

those two sets of comparative ballistics evidence point to in terms of who is

innocent (the accused-appellants) and who is guilty (the ABB), respectively,

the first set should have at the very least raised doubts in the mind of the CA

about the prosecution’s lone alleged eyewitness Alejo’s “positive

identification” of the accused-appellants. The firearms found in the

possession of accused-appellants whom Alejo “positively identified” did not

match ballistics-wise the spent shells and slugs recovered from the crime

scene and from the dead body of the Abadilla. There is no evidence of any

sort, even paraffin tests, to indicate that the accused-appellants had in their

possession and/or fired the firearms that could have been used to kill

Abadilla. Instead, the second set shows that those firearms were used in

other similar ambush-killings attributed to the ABB, and for which other

persons, not the accused-appellants, were charged and some convicted.

But the CA Decision (at p. 14) preferred to look the other way:

“Besides, there is no showing that the firearms supposedly found in

appellants’ possession long after the incident were the ones they used in the

ambush-slay.” (underscoring ours) This is highly speculative and biased

19

against the accused-appellants because the firearms used in the ambush-slay

of Abadilla were never recovered in the case at bar and, as far as we know,

up to the present. There is also a grave violation here of the accused-

appellants’ constitutional right to presumption of innocence.16

Contrary to this constitutional presumption, the OSG Comment now

proffers (at p. 20) another speculation against the accused-appellants: “after

they had accomplished the dastardly deed they were contracted to do, they

returned the firearms they used to the same man who had earlier supplied

said firearms to them.” The OSG Comment cites as the source for this

allegation “the affidavit of accused Joel de Jesus.” The OSG should not and

cannot cite this source. First of all, that was a coerced and uncounselled

confession, as were several others taken from the tortured accused-

appellants, and thus should be considered inadmissible in evidence under the

exclusionary rule for such cases.17 Secondly, the OSG Brief (at p. 26,

Annex C to the Petition) had already adopted the position that “Appellants’

conviction rests on the positive identification by Freddie Alejo and not on

the alleged illegally extracted confessions.”

Like a bad habit it cannot stop, the OSG Comment makes still another

speculation as regards Abadilla’s ambush-taken wrist watch turned over to

Fr. Reyes by a known ABB personality as a way of showing that it was

indeed the ABB, not the accused-appellants, who were responsible for the

Abadilla ambush-killing. The OSG Comment (at p. 21) says: “That

somebody, other than petitioners, gave the wrist watch to the priest is of no

16 1987 Constitution, Art. III, Sec. 14(2). 17 1987 Constitution, Art. III, Secs. 12 and 17.

20

moment as it is possible that petitioners had someone turn it over to the said

man of the cloth.” While they were in jail? Oh, come on. Why such undue

and overstretched speculation? What ever happened to the presumption of

innocence?

That afore-quoted passage from the OSG Brief is immediately

preceded (at the same p. 21) by this passage:

…As stated by this court in Lumanog v. Salazar, Jr., “the wristwatch allegedly belonging to the late Col. Abadilla is immaterial to the case of murder…” The wristwatch makes no difference as to the guilt or innocence of the petitioners. It will not disprove that petitioners were the ones who accomplished the dastardly act.

Now compare that with this passage from a letter of Atty. Hector P. Corpus

of M.M. Lazaro & Associates (as counsel for the Abadilla family and private

prosecutor) to the Abadilla 5 dated October 27, 2008, which was copy

furnished the SC, CA and OSG but not undersigned counsel:

… The Supreme Court in Lumanog v. Salazar, Jr. (364 SCRA 719) emphatically ruled “(t)he wrist watch allegedly belonging to the late Col. Abadilla is immaterial to the case of murder…” The wristwatch will not even prove that you were not the ones who shot the late Col. Abadilla. Even if an alleged ABB member gave the wristwatch to Fr. Reyes, it is still quite probable that you gave the said item to someone to handover to the priest on your behalf. The truncated quotation from Lumanog vs. Salazar, Jr. (which we

shall deal with shortly below) in the Corpus letter is exactly the same, even

in truncation, as the one in the OSG Comment. Their other lines of

argument and of speculation are likewise the same, even if differently

phrased.

We give one more comparison in terms of wording and even sentence

construction. From the OSG Brief (at p. 21):

21

… They [Petitioners] based their argument on newspaper articles and alleged military/police intelligence reports pointing to ABB participation. However, such sources only constitute hearsay evidence…

And from the Corpus letter:

…Your argument is based on newspaper reports and military/police intelligence reports claiming ABB participation. However, they are all hearsay evidence. And though the Corpus letter is dated later than the OSG Comment, it

is clearer now what we had already stated in our Petition (at p. 11): “…

this paper trail shows where all the ‘inspiration’ for the Arguments in

the OSG Brief and in the CA Decision came from. It appears that one

interested private party has been able to effectively influence the

government prosecution offices and even the judiciary to improperly

promote the interests of that party to the detriment of the adverse parties,

the accused-appellants, including herein petitioners.”

Since the aforesaid Corpus letter was copy furnished the SC in the

case at bar in response to an Open Letter from the Abadilla 5 to the Abadilla

Family dated 21 August 2008 (the Aquino assassination’s 25th anniversary),

we might as well also copy furnish the Honorable Court with the latter as

Annex I.

The real killers of Abadilla, the ABB, have gone out of their way

several times to the extent possible for their security since shortly after the

ambush-killing to own up to it, if only to save five innocent lives, but the

Abadilla family and the prosecution “remain in a state of almost total

denial.”18 Elsewhere in the OSG Comment (at p. 16), they state: “It is cruel

and beyond human logic to understand the imputation that the family of a 18 Phrase taken from UN Special Rapporteur Prof. Philip Alston’s statement on 21 February 2007, at the end of a fact-finding visit to the Philippines, describing the AFP’s posture regarding “its need to respond effectively and authentically to the significant number of [extrajudicial] killings which have been convincingly attributed to them.”

22

victim would want to insist on the guilt of someone even if the former

knows otherwise or that the real malefactor is still at large.” Also, in the

aforesaid Corpus letter, he similarly writes “In imputing that the family of

the late Col. Abadilla is insisting on the guilt of people other than the real

killers, the priest has shown that he is not impartial and, worse, has

compounded the anguish still felt by the family of the late Col. Abadilla.”

And how about the anguish still felt by the five families of the

Abadilla 5? To quote their aforesaid Open Letter to the Abadilla Family:

We take this opportunity to reach out to you, first of all in sympathy with you for your loss of a loved one in the person of the late Col. Rolando N. Abadilla, whose Sparrow unit-style ambush-killing on 13 June 1996 we did not commit. For this, we and several others were wrongly arrested and detained since June 1996, and then five of us wrongly convicted and imprisoned since August 1999. From then on, we were death convicts, subject to the physical and mental conditions of Death Row, until the abolition of the death penalty in June 2006. We continue to remain in prolonged imprisonment, in fact more than the 12 years and 1 day start for the penalty of reclusion temporal, while maintaining our innocence through our appeal still pending with the higher court. Needless to say we and our families have suffered terribly, with some families broken in the process. Lenido Lumanog may have suffered the most, being a kidney transplant patient, mostly in prison, for more than five years since April 2003. Given their innocence, what they have gone through and what has

come out from the real killers themselves, the Abadilla 5 cannot be

begrudged their “imputing that the family of the late Col. Abadilla is

insisting on the guilt of people other than the real killers,” the ABB. But

isn’t that “normal” or understandable enough, for the grieving family of a

murdered loved one to have definite persons to blame, served up by the

criminal investigation and justice system, who can be made to pay for their

crime, as a measure of justice and closure?

It is also “normal” or understandable for the grieving family of a

murdered loved one to accept the explanation provided by the criminal gun-

for-hire theory (even if there were no indications of a mastermind for this in

23

the case record) rather than the explanation provided by the ABB political

assassination theory (even if there were indications of this in the case

record). The latter theory just happens to be more derogatory to the

murdered love one because of the ABB’s statements about punishing

Abadilla as a dreaded martial law berdugo who committed crimes, including

“blood debts,” against the people. The grieving family has a “normal” or

understandable interest in concealing that for the sake of the reputation of

the murdered loved one whose family name their share.

But this of course should not be at the expense of truth and of true

justice -- justice for Abadilla and justice for the Abadilla 5. One wrong

cannot be righted by another wrong or more wrongs. That the ABB angle

“has compounded the anguish still felt by the family of the late Col.

Abadilla” should not in itself mean the junking of that angle because it is a

truism that the truth sometimes, if not oftentimes, hurts – but it is also what

should set us free, at least those who should be free. The CA Decision

(copied substantially from the OSG Brief) as it stands does not present a

coherent picture of mastermind, motive, capability, modus operandi, means

and opportunity – elements in the Abadilla ambush-killing that precisely are

what are tied together by the ABB angle.

The Ruling in Lumanog vs. Salazar, Jr.19

We come now to the ruling in Lumanog vs. Salazar, Jr. which the

OSG Comment (at pp. 21 & 22) keeps pounding on, as does the Corpus

letter. The first quotation of that ruling by the OSG Comment (and by the

Corpus letter) reads: “the wristwatch allegedly belonging to the late Col.

19 363 SCRA 719 (2001).

24

Abadilla is immaterial to the case of murder…” The second reference to

that ruling by the OSG Comment reads: “It will be remembered that this

Honorable Court in Lumanog vs. Salazar, had already denied petitioner

Lumanog and Santos’ attempt to introduce evidence on the ABB angle as

‘newly discovered evidence.’”

It must be recalled that Lumanog vs. Salazar, Jr., docketed as G.R.

No. 142065, originated from a “Petition for Certiorari (Rule 65) and for

Extraordinary Legal and Equitable Remedies” dated 9 March 2000 which

was avowedly (at its p. 2) “limited to seeking relief from a particular aspect

of the questioned orders [of the RTC], namely the respondent judge’s very

grave abuse of discretion in denying motions to introduce additional

evidence especially on the heretofore untouched angle of the ABB

responsibility for the Abadilla murder which would have shown the

innocence of the accused and led to the early reversal of their conviction

while the case was still with the RTC.” In the end, just before the

dispositive portion of the Lumanog vs. Salazar, Jr. Decision dismissing the

Petition, is this conclusion: “In view of the foregoing, it is our view and we

hold that the respondent judge did not commit grave abuse of discretion…”

In short, the Lumanog vs. Salazar, Jr. Decision merely settled the

question of grave abuse of discretion about the respondent RTC Judge’s

orders denying motions to introduce additional evidence on the ABB angle,

holding “that the respondent judge did not commit grave abuse of

discretion…”20 Nothing more, nothing less. This does not or should not

mean that the ABB angle should no longer be considered or that additional

20 363 SCRA 719, at 726.

25

evidence thereon should no longer be received in the automatic review case

in the SC (G.R. No. 141660-64) or in the intermediate review case in the CA

(CA-G.R. CR HC No. 00667). More so, when considering the mandate of

the Mateo ruling which occasioned the transfer of the case at bar from the

SC to the CA:

If only to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the [Supreme Court] now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case is elevated to the Supreme Court. Where life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone.21

In other words, the automatic review case or intermediate review case

is a different and whole new ball game from the Rule 65 certiorari case.22

The issue now is no longer the limited issue of grave abuse of discretion but

the whole review of questions of fact and of law to more finally determine

guilt or innocence. “… an appeal in a criminal case opens it up for review

on any question, including one not raised by the parties.”23 The appeal in

the case at bar should not be prejudiced by such afore-quoted rulings

Lumanog vs. Salazar, Jr. as that “the wristwatch allegedly belonging to the

late Col. Abadilla is immaterial to the case of murder…” or that some of the

additional evidence sought to be introduced on the ABB angle do not

constitute allowable “newly-discovered evidence.” These rulings should

be considered good only for purposes of the limited issue of grave abuse

of discretion, but not for purposes of automatic review or intermediate

review.

in

21 433 SCRA 640, at 656. 22 See Rule 65, Sec. 1 on Petition for Certiorari – “When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,…” 23 People vs. Villaruel (261 SCRA 386).

26

In Lumanog vs. Salazar, Jr., the SC did not yet conduct the whole

review of questions of fact and of law to more finally determine guilt or

innocence. So, for the latter purpose, how could the ruling then, for

example, that “the wristwatch allegedly belonging to the late Col. Abadilla is

immaterial to the case of murder…” be considered binding on the final

determination now of guilt or innocence for the crime of murder? The

wristwatch is actually very material – its turnover shows who was really

responsible for the Abadilla ambush-killing which featured the taking of his

wrist-watch and his clutch bag containing his .45 caliber pistol. Among the

initial criminal cases (aside from murder) filed against the Abadilla 5 and

two others were one case for theft of these items and three cases of illegal

possession of firearms. These four cases were all eventually dismissed by

the RTC Joint Decision which should have also dismissed the murder case.

Instead, in the latter case, two co-accused were acquitted but the Abadilla 5

were found guilty and sentenced to death.

In fact, Lumanog vs. Salazar, Jr. itself, though it ruled that certiorari

under Rule 65 is improper, also ruled that “the subject orders of

respondent judge may be questioned only in the main case, that is,…

already before the Supreme Court,… on automatic review…”24

(boldface type ours) It also further ruled that “the petitioners’ allegation of

bias and partiality on the part of respondent judge can be taken up and

discussed by the herein petitioners in their brief in G.R. No. 141660-64

pending before this Court relative to the automatic review…”25 These

24 363 SCRA 719, at 724. 25 Ibid. at 726.

27

matters, especially the all-important consideration of the ABB angle,

including the allowing of additional evidence thereon if necessary (though

there are already several pieces of evidence and offers of evidence on the

ABB angle in the record), were not correctly addressed in the intermediate

review by the CA in CA-G.R. CR HC No. 00667 where there was actually a

failure of appellate review.

The buck now returns to and ends with the SC in the instant case.

It behooves the SC now to implement its own afore-quoted Mateo ruling

mandate to the CA which it miserably failed to perform: “If only to ensure

utmost circumspection… Where life and liberty are at stake, all possible

avenues to determine his guilt or innocence must be accorded an accused,

and no care in the evaluation of the facts can ever be overdone.”26 Although

Lumanog vs. Salazar, Jr. said “that the Supreme Court is not a trier of

facts,”27 the Mateo ruling mandate of “all possible avenues to determine

his guilt or innocence must be accorded an accused” must prevail not

only for being a later and more recent ruling but also one which is

appropriate for the appellate review of cases where “the penalty of death,

reclusion perpetua or life imprisonment is imposed.” As we already pointed

out, Lumanog vs. Salazar, Jr. was merely a Rule 65 certiorari case. “All

possible avenues” in the SC could include, if still necessary, the application

of such rules and jurisprudence as the following, including by analogy and

not necessarily limited to these:

Motion for new trial. -- At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final, the latter may move for a new trial on the ground of

26 433 SCRA 640, at 656. 27 364 SCRA 719, at 726.

28

newly-discovered evidence material to his defense. The motion shall conform with the provisions of section 4, Rule 121.28

Effects of granting a new trial or reconsideration. – The effects of granting a new trial or reconsideration are the following:

(a) When a trial is granted on the ground of error of laws or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence.

(b) When a new trial is granted on the ground of newly-discovered evidence, the already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record.29

(boldface type ours)

Furthermore, the penalty imposed on accused-appellant is death. Here is a situation where a rigid application of the rules must bow to the overriding goal of courts of justice to render justice to secure to every individual all possible legal means to prove his innocence of a crime of which he is charged. The rule for granting a motion for new trial, among others, should be liberally construed to assist the parties in obtaining a just and speedy determination of their rights. Court litigations are primarily for the search of truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth.30

There is thus a need for a new trial in order to determine the veracity

of Ronaldo Narez’s positive identification vis-à-vis the alleged confession made by Leonardo Eliseo since no less than a life is at stake…. Hence, a liberal interpretation of the rule granting a motion for new trial is called for. We cannot in good conscience convict accused-appellant and impose upon him the death penalty when evidence which would possibly exonerate him may be presented by him in a new trial.31 (boldface type ours)

Reopening. -- At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice…32 (boldface type ours)

Modification of judgment. -- A judgment of conviction may, upon motion

of the accused, be modified or set aside before it becomes final or before appeal is perfected…33

Inherent powers of courts. – Every court shall have power: (g) To amend and control its process and orders so as to make them

conformable to law and justice.34 (boldface type ours)

28 Rules of Court, Rule 124, Sec. 14 in relation to Rule 125, Sec. 1 on uniform procedure in the SC and CA. 29 Ibid., Rule 121, Sec. 6. 30 People vs. Del Mundo (262 SCRA 266, at 273). 31 People vs. Ernesto Ebias, G.R. No. 127130, October 12, 2000. 32 Rules of Court, Rule 119, Sec. 24. 33 Ibid., Rule 120, Sec. 7. 34 Ibid., Rule 135, Sec. 5.

29

V. UNCONSTITUTIONAL PENALTY

At the outset, herein petitioners wish to make very clear that they do

not seek the declaration of unconstitutionality of Republic Act No. 9346

prohibiting the imposition of death penalty in the Philippines (Annex B to

the Petition, hereinafter “RA 9346”), which prohibition they most certainly

fully support. They seek the declaration of unconstitutionality only of Sec.

3 thereof, or at least of the penalty of “reclusion perpetua without the benefit

of parole,” particularly the addition of “without the benefit of parole,”

imposed on them by the questioned CA Decision (at p. 16).

In defense of that exclusion from parole, the OSG Comment

extensively quotes the Concurring Opinion of Mr. Justice Dante O. Tinga in

People vs. Tubongbanua on Sec. 3 of RA 9346.35 At best, this Concurring

Opinion’s disquisition on the said Sec. 3, including the pronouncement that

“No constitutional sanctities will be offended” by the denial of the benefit of

parole thereunder, must be treated as a mere obiter dictum, not controlling

doctrine, since in the first place that constitutional issue was not raised at all

as an issue in that case.

And even granting that Justice Tinga’s Concurring Opinion in that

case as to the constitutionality of Sec. 3 of RA 9346 is treated as a

controlling doctrine on that issue, still it must be strictly confined to the

terms of the said Sec. 3: “… shall not be eligible for parole under Act No.

4103, otherwise known as the Indeterminate Sentence Law, as amended.”

35 500 SCRA 727, at 745-49 (2006).

30

Nothing more, nothing less. In other words, it does not by its terms cover

other kinds of parole which may not be under Act 4103 but may still be

possible under other Acts of Congress or under the broad presidential power

of executive clemency.

The constitutional problem or issue with the CA Decision is that it

imposes the penalty of “reclusion perpetua without the benefit of parole”

period, without specifying this ineligibility to be for parole under Act 4103.

And so it unduly prejudices the petitioners and the other accused-appellants

from the possible benefits of other kinds of parole. We already cited, in our

Petition (at p. 35), established Philippine constitutional jurisprudence penned

by the eminent Justice Manuel V. Moran that “The power to pardon given

the President by the Constitution, ‘upon such conditions and with such

restrictions as he may deem proper to impose,’ includes the power to grant

and revoke paroles.”36 This is also established in American jurisprudence37

from which comes our own tradition in constitutional and political law.

In fact, Act 4103 itself in its Sec. 9 also provides that “Nothing in this

Act shall be construed to impair or interfere with the powers of the

Governor-General as set forth in Section 64(i) of the Revised Administrative

Code or the Act of Congress approved August 29, 1916…” The Tesoro

ruling expressly referred to that Sec. 64(i) of the Administrative Code as

conferring upon the Chief Executive the power to grant and revoke paroles

and deemed this to have been carried over into the 1935 Constitution’s

36 Tesoro vs. Director of Prisons, 68 [not 688] Phil. 154, at 159-60 (1939), citing 20 R.C.L., 577; 46 C.J., 1205. 37 See e.g. 39 Am Jr 572, 574, citing Fuller vs. State, 122 Ala 32, 26 So 146, 45 LRA 502, 82 Am St Rep 17; Crooks vs. Sanders, 123 SC 28, 115 SE 760, 28 ALR 940.

31

provision on the presidential power of executive clemency, particularly the

power to pardon, even though that provision was silent on parole.38

Constitutional support for our position is found not only in the

realm of executive power but also in the Bill of Rights. The latter does

not mention “without the benefit of parole” (CA Decision) or “shall not be

eligible for parole” (Sec. 3 of RA 9346) when it says “Any death penalty

already imposed shall be reduced to reclusion perpetua.”39 And then the

Mateo ruling itself, which deals with death penalty and reclusion perpetua

cases and which brought the case at bar to the SC, speaks in these terms: “If

only to ensure utmost circumspection before the penalty of death, reclusion

perpetua or life imprisonment is imposed…”40 Again, no mention of

“without the benefit of parole” or “shall not be eligible for parole.” Stated

otherwise, the terms of reference of the Mateo ruling must be deemed terms

of reference of the case at bar.

There seems to be a notion, even in Justice Tinga’s Concurring

Opinion in People vs. Tubongbanua,41 that adding “without the benefit of

parole” or “shall not be eligible for parole” to reclusion perpetua, as reduced

thereto from the death penalty, is some kind of appropriate measure of

justice to the malefactors concerned, compared to other malefactors who

were/are originally penalized with reclusion perpetua, not the death penalty.

But that would be treating “without the benefit of parole” or “shall not be

eligible for parole” like these were an additional or increased penalty. The

former is not supposed to be the latter although this could be the effect. This 38 68 Phil. 154, at 159. 39 1987 Constitution, Art. III, Sec. 19(1), third sentence. 40 433 SCRA 640, at 656. 41 See 500 SCRA 727, at 746.

32

notwithstanding Justice Tinga’s Concurring Opinion in People vs.

Tubongbanua which says those “do not constitute an increase in the penalty”

or “did not amend the penalty of reclusion perpetua.” 42

Granting that it does not increase or amend the penalty of reclusion

perpetua, it still denies the convict of a certain “benefit” or “eligibility.”

One must go to the purpose of parole, not just the conditional liberty

that goes with it, to see what the real or essential benefit is. For this, we

rely on American jurisprudence:

Executive paroles are provided for their effect on the convict himself to secure a moral reformation of him.43 Like the purpose of parole legislation, the purpose of parole is reformatory rather than punitive. A parole is intended as a means of rehabilitating an imprisoned individual, and of restoring to society an offender who is a good social risk; it is a means of affording him an opportunity to reform under proper supervision. A further purpose is to facilitate his reintegration into society by the time his sentence expires.44 The purpose of parole laws…, is to the end that a good citizen may be made of him. Legislation of this character has for its object moral reformation rather than punishment; and it is expressive of a broad humane purpose on the part of the body enacting it.45 (boldface type ours) In the final analysis, the benefit is not only to the convict himself but

also to society. In the sense that punishment and reformation can go hand in

hand, the reformatory measure of parole is not necessarily incompatible with

the penalty of reclusion perpetua. That the latter “is an indivisible penalty,

with no minimum or maximum period”46 is not and should not be an

argument against the purpose of parole. The need for moral reformation

applies just as much, if not more so, to convicts punished with reclusion

42 Ibid., at 749. 43 39 Am Jur 574, citing Law vs. State, 238 Ala 428, 191 So 803, citing RCL. 44 67A C.J.S. 54, numerous citations omitted. 45 Ibid. 56, numerous citations omitted. 46 500 SCRA 727, at 749.

33

perpetua as it does to convicts punished with lower penalties. Thus, to grant

the latter the benefit or eligibility of parole, while denying the same to the

former, is to do violence to the constitutional equal protection clause.47

Unfortunately, as shown by the the experience of the Abadilla 5, not the

logic of the law, some men are less equal than others.

Nota Bene:

This Reply as well as our Petition makes several references to the

“Brief for Accused-Appellants Lenido Lumanog and Augusto Santos” of

October 2003 in the original SC automatic review case (G.R. No. 141660-

64) as should be deemed incorporated in this Reply as well as our Petition.

But the said Brief may still be with the records in the intermediate review

case of CA-G.R. HC CR No. 00667. That Brief is the counterpart for

comparison of arguments with the OSG Brief which has been made readily

available for perusal in the case at bar as Annex C to the Petition.

WHEREFORE, it is respectfully prayed that the foregoing petitioners’

Reply to the OSG Comment be noted, and that this case now be submitted

for early decision.

Quezon City, 8 December 2008.

SOLIMAN M. SANTOS, JR. and VICENTE DANTE P. ADAN

Counsels for Petitioners by:

SOLIMAN M. SANTOS, JR. 18 Mariposa St., Cubao, QC

Lifetime IBP OR No. 563588 Camarines Sur – 1/2/03

PTR No. 0547181 Canaman, Cam. Sur – 1/2/08

47 1987 Constitution, Art. III, Sec. 1.

34

Copy furnished: (reg.) – Camp Crame Post Office Dec. 8, 2008 [Orig. of Reg. Receipts attached to Copy No. 1] Court of Appeals ………………. Reg. Receipt No. _________ (thru the Presiding Justice) Maria Orosa St. Ermita, Manila The Solicitor General …………. . Reg. Receipt No. _________ 134 Amorsolo St. Legaspi Village, Makati City