Salonga vs. Cruz Pao, 134 SCRA 438, No. L-59524, Feruar!

18, 1985
".R. No. L-59524 Feruar! 18, 1985
#$%&'$ R. SAL$N"A, petitioner,
vs.
($N. )RNAN& CR*+ PA,$, Pres-.-ng #u.ge o/ 01e Cour0 o/ F-rs0 &ns0an2e o/ R-zal
3ran21 4%&&& 56uezon C-0!7, ($N. #*8") R$8$LF$ $R'&+, Pres-.-ng #u.ge o/ 01e
Cour0 o/ F-rs0 &ns0an2e o/ R-zal, 3ran21 444& 56uezon C-0!7 C&'9 F&SCAL S)R"&$
AP$S'$L o/ 6uezon C-0!: C$L. 3AL3&N$ 8&)"$ an. C$L. R$;AN
;A8)LLA, respondents.
"*'&)RR)+, #R., J.:
The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the
due process clause, alleging that no prima facie case has been established to warrant the filing of
an information for subversion against him. Petitioner asks this Court to prohibit and prevent the
respondents from using the iron arm of the law to harass, oppress, and persecute him, a member
of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of August, September and
ctober of !"#$. n September %, !"#$, one &ictor 'urns (ovely, )r., a Philippine*born
American citi+en from (os Angeles, California, almost killed himself and in,ured his younger
brother, -omeo, as a result of the e.plosion of a small bomb inside his room at the /MCA
building in Manila. 0ound in (ovely1s possession by police and military authorities were several
pictures taken sometime in May, !"#$ at the birthday party of former Congressman -aul 2a+a
held at the latter1s residence in a (os Angeles suburb. Petitioner )ovito -. Salonga and his wife
were among those whose likenesses appeared in the group pictures together with other guests,
including (ovely.
As a result of the serious in,uries he suffered, (ovely was brought by military and police
authorities to the A0P Medical Center 3&. (una 4ospital5 where he was placed in the custody and
detention of Col. -oman P. Madella, under the over*all direction of 6eneral 0abian &er, head of
the 7ational 8ntelligence and Security Authority 378SA5. Shortly afterwards, Mr. (ovely and his
two brothers, -omeo and 'alta+ar (ovely were charged with subversion, illegal possession of
e.plosives, and damage to property.
n September !9, !"#$, bombs once again e.ploded in Metro Manila including one which
resulted in the death of an American lady who was shopping at -ustan1s Supermarket in Makati
and others which caused in,uries to a number of persons.
n September 9$, !"#$, the President1s anniversary television radio press conference was
broadcast. The younger brother of &ictor (ovely, -omeo, was presented during the conference.
8n his interview, -omeo stated that he had driven his elder brother, &ictor, to the petitioner1s
house in 6reenhills on two occasions. The first time was on August 9$, !"#$. -omeo stated that
&ictor did not bring any bag with him on that day when he went to the petitioner1s residence and
did not carry a bag when he left. The second time was in the afternoon of August :!, !"#$ when
he brought &ictor only to the gate of the petitioner1s house. -omeo did not enter the petitioner1s
residence. 7either did he return that day to pick up his brother.
The ne.t day, newspapers came out with almost 8dentical headlines stating in effect that
petitioner had been linked to the various bombings in Metro Manila.
Meanwhile, on September 9;, !"#$, (ovely was taken out of the hospital1s intensive care unit
and transferred to the office of Col. Madella where he was held incommunicado for some time.
n the night of ctober <, !"#$, more bombs were reported to have e.ploded at three big hotels
in Metro Manila, namely= Philippine Pla+a, Century Park Sheraton and Manila Peninsula. The
bombs in,ured nine people. A meeting of the 6eneral Military Council was called for ctober %,
!"#$.
n ctober !", !"#$, minutes after the President had finished delivering his speech before the
8nternational Conference of the American Society of Travel Agents at the Philippine 8nternational
Convention Center, a small bomb e.ploded. >ithin the ne.t twenty*four hours, arrest, search,
and sei+ure orders 3ASSs5 were issued against persons who were apparently implicated by
&ictor (ovely in the series of bombings in Metro Manila. ne of them was herein petitioner.
&ictor (ovely offered himself to be a ?state witness? and in his letter to the President, he stated
that he will reveal everything he knows about the bombings.
n ctober 9!, !"#$, elements of the military went to the hospital room of the petitioner at the
Manila Medical Center where he was confined due to his recurrent and chronic ailment of
bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the
ASS form which however did not specify the charge or charges against him. 0or some time, the
petitioner1s lawyers were not permitted to visit him in his hospital room until this Court in the
case of Ordoez v. Gen. Fabian Ver, et al., 36.-. 7o. ;;:<;, ctober 9#, !"#$5 issued an order
directing that the petitioner1s right to be visited by counsel be respected.
n 7ovember 9, !"#$, the petitioner was transferred against his ob,ections from his hospital
arrest to an isolation room without windows in an army prison camp at 0ort 'onifacio, Makati.
The petitioner states that he was not informed why he was transferred and detained, nor was he
ever investigated or @uestioned by any military or civil authority.
Subse@uently, on 7ovember 9A, !"#$, the petitioner was released for humanitarian reasons from
military custody and placed ?under house arrest in the custody of Mrs. (ydia Salonga? still
without the benefit of any investigation or charges.
n 2ecember !$, !"#$, the )udge Advocate 6eneral sent the petitioner a ?7otice of Preliminary
8nvestigation? in People v. Benigno Aquino, Jr., et al. 3which included petitioner as a co*
accused5, stating that ?the preliminary investigation of the above*entitled case has been set at
9=:$ o1clock p.m. on 2ecember !9, !"#$? and that petitioner was given ten 3!$5 days from
receipt of the charge sheet and the supporting evidence within which to file his counter*evidence.
The petitioner states that up to the time martial law was lifted on )anuary !A, !"#!, and despite
assurance to the contrary, he has not received any copies of the charges against him nor any
copies of the so*called supporting evidence.
n 0ebruary ", !"#!, the records of the case were turned over by the )udge Advocate 6eneral1s
ffice to the Ministry of )ustice.
n 0ebruary 9<, !"#!, the respondent City 0iscal filed a complaint accusing petitioner, among
others of having violated -epublic Act 7o. !A$$, as amended by P.2. ##; and 'atas Pambansa
'lg. :! in relation to Article !<9 of the -evised Penal Code. The in@uest court set the
preliminary investigation for March !A, !"#!.
n March %, !"#!, the petitioner was allowed to leave the country to attend a series of church
conferences and undergo comprehensive medical e.aminations of the heart, stomach, liver, eye
and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga
almost died as one of the principal victims of the dastardly bombing of a (iberal Party rally at
Pla+a Miranda on August 9$, !"A!. Since then, he has suffered serious disabilities. The petitioner
was riddled with shrapnel and pieces still remain in various parts of his body. 4e has an A&
fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has
limited use of his one remaining hand and arms, is completely blind and physical in the left eye,
and has scar like formations in the remaining right eye. 4e is totally deaf in the right ear and
partially deaf in the left ear. The petitioner1s physical ailments led him to seek treatment abroad.
n or around March 9%, !"#!, the counsel for petitioner was furnished a copy of an amended
complaint signed by 6en. Prospero livas, dated March !9, !"#!, charging the petitioner, along
with :" other accused with the violation of -.A. !A$$, as amended by P.2. ##;, 'atas Pambansa
'lg. :! and P.2. !A:%. 4earings for preliminary investigation were conducted. The prosecution
presented as its witnesses Ambassador Armando 0ernande+, the Consul 6eneral of the
Philippines in (os Angeles, California, Col. 'albino 2iego, PSCB78SA Chief, 8nvestigation and
(egal Panel of the Presidential Security Command and &ictor (ovely himself.
n ctober !;, !"#!, the counsel for petitioner filed a motion to dismiss the charges against
petitioner for failure of the prosecution to establish a prima facie case against him.
n 2ecember 9, !"#!, the respondent ,udge denied the motion. n )anuary <, !"#9, he issued a
resolution ordering the filing of an information for violation of the -evised Anti*Subversion Act,
as amended, against forty 3<$5 people, including herein petitioner.
The resolutions of the respondent ,udge dated 2ecember 9, !"#! and )anuary <, !"#9 are now
the sub,ect of the petition. 8t is the contention of the petitioner that no prima facie case has been
established by the prosecution to ,ustify the filing of an information against him. 4e states that to
sanction his further prosecution despite the lack of evidence against him would be to admit that
no rule of law e.ists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered by the
prosecution utterly insufficient to establish a prima facie case against the petitioner. >e grant the
petition.
4owever, before going into the merits of the case, we shall pass upon a procedural issue raised
by the respondents.
The respondents call for adherence to the consistent rule that the denial of a motion to @uash or
to dismiss, being interlocutory in character, cannot be @uestioned by certiorariC that since the
@uestion of dismissal will again be considered by the court when it decides the case, the movant
has a plain, speedy and ade@uate remedy in the ordinary course of lawC and that public interest
dictates that criminal prosecutions should not be en,oined.
The general rule is correctly stated. 4owever, the respondents fail to appreciate or take into
account certain e.ceptions when a petition for certiorari is clearly warranted. The case at bar is
one such e.ception.
8n the case of Mead v. Angel 3!!; SC-A 9;%5 the same contentions were advanced by the
respondents to wit=
... ... ...
... -espondents advert to the rule that when a motion to @uash filed by an accused in a criminal
case shall be denied, the remedy of the accused*movant is not to file a petition for certiorari or
mandamus or prohibition, the proper recourse being to go to trial, without pre,udice to his right
to reiterate the grounds invoked in his motion to @uash if an adverse ,udgment is rendered against
him, in the appeal that he may take therefrom in the manner authori+ed by law. 3Mill v. People, et
al., !$! Phil. ;""C Ecarol v. Puri!i"a, et al., !: SC-A :$".5
n this argument, we ruled=
There is no disputing the validity and wisdom of the rule invoked by the respondents. 4owever,
it is also recogni+ed that, under certain situations, recourse to the e.traordinary legal remedies of
certiorari, prohibition or mandamus to @uestion the denial of a motion to @uash is considered
proper in the interest of ?more enlightened and substantial ,ustice?, as was so declared in #$ap v.
%utero, 6.-. 7o. (*!9%%", April :$, !"%".?
8nfinitely more important than conventional adherence to general rules of criminal procedure is
respect for the citi+en1s right to be free not only from arbitrary arrest and punishment but also
from unwarranted and ve.atious prosecution. The integrity of a democratic society is corrupted if
a person is carelessly included in the trial of around forty persons when on the very face of the
record no evidence linking him to the alleged conspiracy e.ists. D.*Senator )ovito Salonga,
himself a victim of the still unresolved and heinous Pla+a Miranda bombings, was arrested at the
Manila Medical Center while hospitali+ed for bronchial asthma. >hen arrested, he was not
informed of the nature of the charges against him. 7either was counsel allowed to talk to him
until this Court intervened through the issuance of an order directing that his lawyers be
permitted to visit him 3rdone+ v. 6en. 0abian &er, et al., 6.-. 7o. ;;:<;, ctober 9#, !"#$5.
nly after four months of detention was the petitioner informed for the first time of the nature of
the charges against him. After the preliminary investigation, the petitioner moved to dismiss the
complaint but the same was denied. Subse@uently, the respondent ,udge issued a resolution
ordering the filing of an information after finding that a prima facie case had been established
against an of the forty persons accused.
8n the light of the failure to show prima facie that the petitioner was probably guilty of
conspiring to commit the crime, the initial disregard of petitioner1s constitutional rights together
with the massive and damaging publicity made against him, ,ustifies the favorable consideration
of this petition by this Court. >ith former Senator 'enigno A@uino, )r. now deceased, there are
at least :# other co*accused to be tried with the petitioner. The prosecution must present proof
beyond reasonable doubt against each and every one of the :" accused, most of whom have
varying participations in the charge for subversion. The prosecution1s star witness &ictor (ovely
and the only source of information with regard to the alleged link between the petitioner and the
series of terrorist bombings is now in the Enited States. There is reason to believe the petitioner1s
citation of international news dispatches < that the prosecution may find it difficult if not
infeasible to bring him back to the Philippines to testify against the petitioner. 8f (ovely refused
to testify before an American federal grand ,ury how could he possibly be made to testify when
the charges against the respondent come up in the course of the trial against the :" accused.
Considering the foregoing, we find it in the interest of ,ustice to resolve at this stage the issue of
whether or not the respondent ,udge gravely abused his discretion in issuing the @uestioned
resolutions.
The respondents contend that the prosecution will introduce additional evidence during the trial
and if the evidence, by then, is not sufficient to prove the petitioner1s guilt, he would anyway be
ac@uitted. /es, but under the circumstances of this case, at what cost not only to the petitioner but
to the basic fabric of our criminal ,ustice systemF
The term ?prima facie evidence? denotes evidence which, if une.plained or uncontradicted, is
sufficient to sustain the proposition it supports or to establish the facts, or to counter*balance the
presumption of innocence to warrant a conviction. The @uestion raised before us now is= >ere
the evidences against the petitioner uncontradicted and if they were une.plained or
uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence
and warrant his convictionF
>e do not think so.
The records reveal that in finding a case against the petitioner, the respondent ,udge relied only
on the testimonies of Col. 'albino 2iego and &ictor (ovely. Ambassador Armando 0ernande+,
when called upon to testify on subversive organi+ations in the Enited States nowhere mentioned
the petitioner as an organi+er, officer or member of the Movement for 0ree Philippines 3M0P5, or
any of the organi+ations mentioned in the complaint. Col. 2iego, on the other hand, when asked
what evidence he was able to gather against the petitioner depended only on the statement of
(ovely ?that it was the residence of e.*Senator Salonga where they met together with -enato
TaGada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been
meeting with several subversive personnel based in the E.S.A. was also revealed to me by &ictor
'urns (ovelyC !! and on the group pictures taken at former Congressman -aul 2a+a1s birthday
party. 8n concluding that a conspiracy e.ists to overthrow by violent means the government of
the Philippines in the Enited States, his only bases were ?documentary as well as physical and
sworn statements that were referred to me or taken by me personally,? which of course negate
personal knowledge on his part. >hen asked by the court how he would categori+e petitioner in
any of the subversive organi+ations, whether petitioner was an organi+er, officer or a member,
the witness replied=
A. To categori+e former Senator Salonga if he were an organi+er, he is an officer or he is a
member, your 4onor, please, we have to consider the surrounding circumstances and on his
involvement= first, Senator Salonga wanted always to travel to the Enited States at least once a
year or more often under the prete.t of to undergo some sort of operation and participate in some
sort of seminar. 3t.s.n., April 9!, !"#!, pp* !<*!;5
Such testimony, being based on affidavits of other persons and purely hearsay, can hardly @ualify
as prima facie evidence of subversion. 8t should not have been given credence by the court in the
first place. 4earsay evidence, whether ob,ected to or not, *has no probative value as the affiant
could not have been cross*e.amined on the facts stated therein. 3See People v. (abinia, !!;
SC-A 99:C People v. &alero, !!9 SC-A %%!5. Moreover, as &ictor (ovely, himself, was
personally e.amined by the court, there was no need for the testimony of Col. 2iego. Thus, the
in@uest ,udge should have confined his investigation to &ictor 'urns (ovely, the sole witness
whose testimony had apparently implicated petitioner in the bombings which eventually led to
the filing of the information.
(ovely1s account of the petitioner1s involvement with the former1s bombing mission is found in
his sworn statement made before Col. 2iego and (t. Col. Madella and taken on ctober !A, !"#$
at the A0P Medical Center. (ovely was not presented as a prosecution or state witness but only
as a de&en!e 'itne!! for his two younger brothers, -omeo and 'alta+ar, who were both included
in the complaint but who were later dropped from the information. &ictor (ovely was e.amined
by his counsel and cross*e.amined by the fiscal. 8n the process, he 8dentified the statement which
he made before Col. 2iego and (t. Col. Madella. After (ovely1s testimony, the prosecution made
a manifestation before the court that it was adopting (ovely as a prosecution witness.
According to (ovely1s statement, the following events took place=
:%. H. 2id Psinakis tell you where to stayF
A. /es, at first he told me to check*in at Manila 4otel or the Pla+a 4otel where somebody would
come to contact me and give the materials needed in the e.ecution of my mission. 8 thought this
was not safe so 8 disagreed with him. Mr. Psinakis changed the plan and instead told me to visit
the residence of D.*Sen. )ovito Salonga as often as 8 can and someone will meet me there to give
the materials 8 needed to accomplish my mission
:A. H. 2id you comply as instructedF
A. /es, 8 arrived in Manila on August 9$, !"#$ and stayed at the residence of Mr. )ohnny Chua,
husband of my business partner, then 8 went to the 4ospital where 8 visited my mother and
checked*in at -oom :$: of the /MCA at Concepcion Street, Manila.
:#. H. 2id you visit the residence of former Senator )ovito Salonga as directed by PsinakisF
A. 8 visited Sen. Salonga1s place three 3:5 times, the first visit was August 9$ or 9!, and the last
was <=$$ P.M. of August :!, !"#$. 8n addition to these visits, 8 TA(ID2 to him on the phone
about three or four times. n my first visit, 8 told him ?8 am e.pecting an attache case from
somebody which will be delivered to your house,? for which Sen. Salonga replied ?>ala namang
nagpunta dito at wala namang attache case para sa iyo.? 4owever, if your attache case arrives, 81ll
,ust call you.? 8 gave him my number. n my second visit, Salonga said, ?81ll be very busy so ,ust
come back on the :!st of August at < P.M.? n that date, 8 was with friends at 'atulao -esort
and had to hurry back to be at Salonga1s place for the appointment. 8 arrived at Salonga1s place at
e.actly < P.M.
:". H. >hat happened thenF
A. 8 was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga ,oined me in
the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case
but did not tell me the name.
<$. H. Are there any sub,ect matters you discuss while waiting for that somebody to deliver your
materialsF
A. /es, Salonga asked if Sen. A@uino and 8 have met, 8 e.plained to him the efforts of -aul 2a+a
in setting up that meeting but 8 have previous business commitments at 7orfolk, &irginia. 8 told
him, however, that through the efforts of -aul 2a+a, 8 was able to talk with 7inoy A@uino in the
airport telephone booth in San 0rancisco. 4e also asked about -aul 2a+a, Steve Psinakis and the
latest opposition group activities but it seems he is well informed.
<!. H. 4ow long did you wait until that somebody arrivedF
A. About thirty 3:$5 minutes.
<!. H. >hat happened when the man arrivedF
A. This man arrived and 8 was greatly surprised to see Atty. -enato TaGada )ovy Salonga was the
one who met him and as 8 observed parang nasa sariling bahay si TaGada nung dumating. They
talked for five 3;5 minutes in very low tones so 8 did not hear what they talked about. After their
whispering conversations, Sen. Salonga left and at this time Atty. ?7its? TaGada told me ?7asa
akin ang kailangan mo, nasa kotse.?
<:. H. >ere the materials given to youF
A. >hen Sen. Salonga came back, we asked to be permitted to leave and 8 rode in Atty. ?7its?
TaGadas old Pontiac car colored dirty brown and proceeded to 'roadway Centrum where before 8
alighted, Atty. TaGada handed me a ?Puma? bag containing all the materials 8 needed.
... ... ...
<;. H. >hat were the contents of the Puma bagF
A. Ten 3!$5 pieces of >estclo. pocket watch with screw and wirings, ten 3!$5 pieces electrical
blasting caps <? length, ten 3!$5 pieces non*electrical blasting caps ! ? length, nine 3"5 pieces
volts dry cell battery, two 395 improvised electrical testers. ten 3!$5 plastic packs of high
e.plosive about ! pound weight each.
4owever, in his interview with Mr. -onnie 7athaniel+ which was aired on Channel < on
7ovember #, !"#$ and which was also offered as evidence by the accused, (ovely gave a
different story which negates the above testimony insofar as the petitioner1s participation was
concerned=
... ... ...
H. >ho were the people that you contacted in Manila and for what purposeF
A. 'efore 8 left for the Philippines, Mr. Psinakis told me to check in at the Manila 4otel or the
Pla+a 4otel, and somebody would ,ust deliver the materials 8 would need. 8 disapproved of this,
and 8 told him 8 would prefer a place that is familiar to me or who is close to me. Mr. Psinakis
suggested the residence of Sen. Salonga.
And so, 8 arrived in Manila on August 9$, !"#$, ! made a call to Sen. Salonga, but he was out.
The ne.t day 8 made a call again. 8 was able to contact him. 8 made an appointment t see him. 8 
went to Sen. Salonga1s house the following day. 8 asked Sen. Salonga if someone had given him
an attache case for me. 4e said nobody. Afterwards, 8 made three calls to Sen. Salonga. Sen.
Salonga told me ?call me again on the :!st of August. ( did not call i", ( )u!t 'ent to i! ou!e
on te *+!t o& Augu!t at , P.M. A &e' "inute! a&ter "- arrival Att-. .enato /aada arrived.
0en e ad a cance to be near "e, e 1Att-. /anada2 'i!pered to "e tat e ad te attace
ca!e and te "aterial! ( needed in i! car. /e!e "aterial! 'ere given to "e b- Att-. /anada
0en ( aligted at te Broad'a- 3entru". 3Dmphasis supplied5
2uring the cross*e.amination, counsel for petitioner asked (ovely about the so*called
destabili+ation plan which the latter mentioned in his sworn statement=
H. /ou mentioned in your statement taken on ctober !A, !"#$, marked D.hibit ?6? about the
so*called destabili+ation plan of A@uino. >hen you attended the birthday party of -aul 2a+a
wherein )ovito Salonga was also present, was this destabili+ation plan as alleged by you already
formulatedF
>8T7DSS=
A. 7ot to my knowledge.
CE-T T >8T7DSS=
H. Mr. >itness, who invited you to the partyF
A. -aul 2a+a, your 4onor.
H. >ere you told that Mr. Salonga would be present in the party.
A. 8 am really not @uite sure, your 4onor.
H. Alright. /ou said initially it was social but then it became political. >as there any political
action taken as a result of the partyF
A. nly political discussion, your 4onor. 3TS7, )uly #, !"#!, pp. %"*#<5.
Counsel for petitioner also asked (ovely whether in view of the latter1s awareness of the physical
condition of petitioner, he really implicated petitioner in any of the bombings that occurred in
Metro Manila. The fiscal ob,ected without stating any ground. 8n sustaining the ob,ection, the
Court said=
Sustained . . . The use of the word 1implicate1 might e.pand the role of Mr. Salonga. 8n other
words, you are widening the avenue of Mr. Salonga1s role beyond the participation stated in the
testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, 8
supposed, is only being in the house of Mr. Salonga which was used as the contact point. 4e
never mentions Mr. Salonga about the bombings. 7ow these words had to be put in the mouth of
this witness. That would be unfair to Mr. Salonga. 3TS7. )uly #, !"#!, p. %A5
-espondent ,udge further said=
CE-T=
As the Court said earlier, the parts or portions affecting Salonga only refers to the witness
coming to Manila already then the matter of . . . 8 have gone over the statement and there is no
mention of Salonga insofar as activities in the Enited States is concerned. 8 don1t know why it
concerns this cross*e.amination.
ATT/. /AP=
'ecause according to him, it was in pursuance of the plan that he came to Manila.
CE-T=
According to him it was A@uino, 2a+a, and Psinakis who asked him to come here, but Salonga
was introduced only when he 3(ovely5 came here. 7ow, the tendency of the @uestion is also to
connect Salonga to the activities in the Enited States. 8t seems to be the thrust of the @uestions.
CE-T=
8n other words, the point of the Court as of the time when you asked him @uestion, the focus on
Salonga was only from the time when he met Salonga at 6reenhills. 8t was the first time that the
name of Salonga came up. There was no mention of Salonga in the formulation of the
destabili+ation plan as affirmed by him. 'ut you are bringing this up although you are only cross*
e.amining for Salonga as if his 3(ovely1s5 activities in the Enited States affected Salonga. 3TS7.
)uly #, !"#!, pp. A:*A<5.
Apparently, the respondent ,udge wanted to put things in proper perspective by limiting the
petitioner1s alleged ?participation? in the bombing mission only to the fact that petitioner1s house
was used as a ?contact point? between (ovely and TaGada, which was all that (ovely really
stated in his testimony.
4owever, in the @uestioned resolution dated 2ecember 9, !"#!, the respondent ,udge suddenly
included the ?activities? of petitioner in the Enited States as his basis for denying the motion to
dismiss=
n the activities of Salonga in the Enited States, the witness, (ovely, in one of his statements
declared= 1To the best of my recollection he mentioned of some kind of violent struggle in the
Philippines being most likely should reforms be not instituted by President Marcos immediately.
8t is therefore clear that the prosecution1s evidence has established facts and circumstances
sufficient for a finding that e.cludes a Motion to 2ismiss by respondent Salonga. The Movement
for 0ree Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources
of foreign entities, and is being 3sic5 on gaining ascendancy in the Philippines with the use of
force and for that purpose it has linked itself with even communist organi+ations to achieve its
end. 8t appears to rely on aliens for its supporters and financiers.
The ,ump from the ?contact point? theory to the conclusion of involvement in subversive
activities in the Enited States is not only ine.plicable but without foundation.
The respondents admit that no evidence was presented directly linking petitioner Salonga to
actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts
of subversion. 4owever, he is tagged as a leader of subversive organi+ations for two reasons*
3!5 'ecause his house was used as a ?contactpoint?C and
395 'ecause ?he mentioned some kind of violent struggle in the Philippines being most likely
should reforms be not instituted by President Marcos immediately.?
The ?contact point? theory or what the petitioner calls the guilt by visit or guilt by association?
theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the
bombing incidents. To indict a person simply because some plotters, mas@uerading as visitors,
have somehow met in his house or office would be to establish a dangerous precedent. The right
of citi+ens to be secure against abuse of governmental processes in criminal prosecutions would
be seriously undermined.
The testimony of &ictor (ovely against petitioner Salonga is full of inconsistencies. Senator
Salonga and Atty. -enato TaGada could not have whispered to one another because the petitioner
is almost totally deaf. (ovely could not have met Senator Salonga at a Manglapus party in
>ashington, 2.C. in !"AA because the petitioner left for the Enited States only on 4ove"ber,
+567. Senator Salonga denies having known Mr. (ovely in the Enited States or in the
Philippines. 4e states that he has hundred of visitors from week to week in his residence but
cannot recall any &ictor (ovely.
The presence of (ovely in a group picture taken at Mr. -aul 2a+a1s birthday party in (os Angeles
where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his
many years in the turbulent world of politics, he has posed with all kinds of people in various
groups and various places and could not possibly vouch for their conduct. Commenting on the
matter, newspaper columnist Teodoro &alencia stated that 0ilipinos love to pose with important
visitors and the picture proves nothing.
8t is likewise probable that a national figure and former politician of Senator Salonga1s stature
can e.pect guests and visitors of all kinds to be visiting his home or office. 8f a rebel or
subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or
even visit him with others in his home, the petitioner does not thereby become a rebel or
subversive, much less a leader of a subversive group. More credible and stronger evidence is
necessary for an indictment. 7onetheless, even if we discount the flaws in (ovely1s testimony
and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still
inade@uate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which could positively link
the petitioner to any proscribed activities of the Movement for 0ree Philippines or any subversive
organi+ation mentioned in the complaint. (ovely had already testified that during the party of
former Congressman -aul 2a+a which was alleged to have been attended by a number of
members of the M0P, no political action was taken but only political discussion. 0urthermore,
the alleged opinion of the petitioner about the likelihood of a violent struggle here in the
Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a
legitimate e.ercise of freedom of thought and e.pression. 7o man deserves punishment for his
thoughts. 3ogitationi! poena" "e"o "eretur. And as the late )ustice liver >. 4olmes stated in
the case of 8.9. v. 9c'i""er, 9A" E.S. %<<, ? ... if there is any principle of the Constitution that
more imperatively calls for attachment than any other it is the principle of free thought not free
thought for those who agree with us but freedom for the thought that we hate.?
>e have adopted the concept that freedom of e.pression is a ?preferred? right and, therefore,
stands on a higher level than substantive economic or other liberties. The primacy, the high estate
accorded freedom of e.pression is a fundamental postulate of our constitutional system.
36on+ales v. Commission on Dlections, 9" SC-A #:;5. As e.plained by )ustice Cardo+o
in Pal:o v. 3onnecticut3:$9 E.S. :!"5 this must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of
nearly every other form of freedom. Protection is especially mandated for political discussions.
This Court is particularly concerned when allegations are made that restraints have been imposed
upon mere criticisms of government and public officials. Political discussion is essential to the
ascertainment of political truth. 8t cannot be the basis of criminal indictments.
The Enited States Supreme Court in 4oto v. 8nited 9tate! 3:%A E.S. 9"$5 distinguished between
the ab!tract teacing of the moral propriety or even moral necessity for a resort to force and
violence and speech which would prepare a group for violent action and steel it to such action.
8n 0att! v. 8nited 9tate! 3:"< E.S. A$;5, the American court distinguished between criminal
threats and constitutionally protected speech.
8t stated=
>e do not believe that the kind of political hyperbole indulged in by petitioner fits within that
statutory term. 0or we must interpret the language Congress chose against the background of a
profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. 7ew /ork Times Co.
v. Sullivan 3:A% E.S. 9;<5. The language of the political arena, like the language used in labor
disputed is often vituperative abusive, and ine.act. >e agree with petitioner that his only offense
was a kind of very crude offensive method of stating a political opposition to the President.
8n the case before us, there is no teaching of the moral propriety of a resort to violence, much
less an advocacy of force or a conspiracy to organi+e the use of force against the duly constituted
authorities. The alleged remark about the likelihood of violent struggle unless reforms are
instituted is not a threat against the government. 7or is it even the uninhibited, robust, caustic, or
unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the
American case of Brandenburg v. Oio 3:"; E.S. <<<5 states that the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation e.cept where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action. The words which
petitioner allegedly used according to the best recollections of Mr. (ovely are light years away
from such type of proscribed advocacy.
Political discussion even among those opposed to the present administration is within the
protective clause of freedom of speech and e.pression. The same cannot be construed as
subversive activities per se or as evidence of membership in a subversive organi+ation. Ender
Presidential 2ecree 7o. ##;, Section :, paragraph %, political discussion will only constitute,
prima facie evidence of membership in a subversive organi+ation if such discussion amounts to=
3%5 Conferring with officers or other members of such association or organi+ationin &urterance
o& an- plan or enterpri!e tereo&.
As stated earlier, the prosecution has failed to produce evidence that would establish any link
between petitioner and any subversive organi+ation. Dven if we lend credence to (ovely1s
testimony that a political discussion took place at 2a+a1s birthday party, no proof whatsoever was
adduced that such discussion was in furtherance of any plan to overthrow the government
through illegal means. The alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to violence or furtherance of the
ob,ectives of a subversive organi+ation.
(ovely also declared that he had nothing to do with the bombing on August 99, !"#$, which was
the only bombing incident that occurred after his arrival in Manila on August 9$, and before the
/MCA e.plosion on September %, !"#$. 3See TS7, pp. %:*%:, )uly #, !"#!5. 4e further testified
that=
>8T7DSS=
Actually, it was not my intention to do some kind of bombing against the government. My
bombing mission was directed against the particular family 3referring to the Cabarrus family
JTS7, p. !!, )uly ", !"#!K J-ollo, p. !$K.
Such a statement wholly negates any politically motivated or subversive assignment which
(ovely was supposed to have been commissioned to perform upon the orders of his co* accused
and which was the very reason why they answer charged in the first place. The respondent ,udge
also asked (ovely about the possible relation between Cabarrus and petitioner=
CE-T=
H. 2id you suspect any relation between Cabarrus and )ovito Salonga, why did you implicate
)ovito SalongaF
A. 7o, your 4onor. 8 did not try to implicate Salonga.
8t should be noted that after (ovely1s testimony, the prosecution manifested to the court that it
was adopting him as a prosecution witness. Therefore, the prosecution became irreversively
bound by (ovely1s disclaimers on the witness stand, that it was not his intention ?to do some kind
of bombing against the government? and that he ?did not try to implicate Salonga?, especially
since (ovely is the sole witness adopted by the prosecution who could supposedly establish the
link between the petitioner and the bombing incidents.
The respondent court should have taken these factors into consideration before concluding that a
prima facie case e.ists against the petitioner. Dvidence must not only proceed from the mouth of
a credible witness but it must be credible in itself such as the common e.perience and
observation of mankind can approve as probable under the circumstances. 3People v. 2ayad, ;%
SC-A <:"5. 8n the case at bar, the prosecution cannot even present a credible version of the
petitioner1s role in the bombings even if it ignores the subse@uent disclaimers of (ovely and
without relying on mere affidavits including those made by (ovely during his detention.
The resolution dated )anuary <, !"#9 suffers from the same defect. 8n this resolution, (ovely1s
previous declarations about the bombings as part of the alleged destabili+ation plan and the
people behind the same were accorded such credibility by the respondent ,udge as if they had
already been proved beyond reasonable doubt.
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, e.pense and an.iety of a public trial, and also to protect the state from useless and
e.pensive trials. 3Trocio v. Manta, !!# SC-A 9<!C citing 4ashim v. 'oncan, A! Phil. 9!%5. The
right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. 3See People v. andasa, 9; SC-A 9AA5 4owever, 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. 8t is,
therefore, imperative upon the fiscal or the ,udge 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 e.ists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fi.ed rule for the determination of probable
cause since the same "u!t be decided in the light of the conditions obtaining in given situations
and its e.istence depends to a large degree upon the finding or opinion of the ,udge conducting
the e.amination, such a finding should not disregard the facts before the ,udge nor run counter to
the clear dictates of reasons 3See (a Chemise (acoste, S.A. v. 0ernande+, !9" SC-A :"!5. The
,udge 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. 8t bears repeating that the ,udiciary lives up to its mission
by vitali+ing and not denigrating constitutional rights. So it has been before. 8t should continue to
be so. Mercado v. Court of 0irst 8nstance of -i+al, !!% SC-A ":5.
The Court had already deliberated on this case, a consensus on the Court1s ,udgment had been
arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any,
when on )anuary !#, !"#;, respondent )udge -odolfo rti+ granted the motion of respondent
City 0iscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to
instructions of the Minister of )ustice, the prosecution restudied its evidence and decided to seek
the e.clusion of petitioner )ovito Salonga as one of the accused in the information filed under the
@uestioned resolution.
>e were constrained by this action of the prosecution and the respondent )udge to withdraw the
draft ponencia from circulating for concurrences and signatures and to place it once again in the
Court1s crowded agenda for further deliberations.
8nsofar as the absence of a prima facie case to warrant the filing of subversion charges is
concerned, this decision has been rendered moot and academic by the action of the prosecution.
-espondent 0iscal Sergio Apostol correctly points out, however, that he is not precluded from
filing new charges for the same acts because the petitioner has not been arraigned and double
,eopardy does not apply. in that sense, the case is not completely academic.
-ecent developments in this case serve to focus attention on a not too well known aspect of the
Supreme Court1s functions.
The setting aside or declaring void, in proper cases, of intrusions of State authority into areas
reserved by the 'ill of -ights for the individual as constitutionally protected spheres where even
the awesome powers of 6overnment may not enter at will is not the totality of the Court1s
functions.
The Court also has the duty to formulate guiding and controlling constitutional principles,
precepts, doctrines, or rules. 8t has the symbolic function of educating bench and bar on the
e.tent of protection given by constitutional guarantees.
8n dela 3a"ara v. Enage 3<! SC-A !5, the petitioner who @uestioned a P!,!";,9$$.$$ bail bond
as e.cessive and, therefore, constitutionally void, escaped from the provincial ,ail while his
petition was pending. The petition became moot because of his escape but we nonetheless
rendered a decision and stated=
The fact that the case is moot and academic should not preclude this Tribunal from setting forth
in language clear and unmistakable, the obligation of fidelity on the part of lower court ,udges to
the une@uivocal command of the Constitution that e.cessive bail shall not be re@uired.
8n Gonzale! v. Marco! 3%; SC-A %9<5 whether or not the Cultural Center of the Philippines
could validly be created through an e.ecutive order was mooted by Presidential 2ecree 7o. !;,
the Center1s new charter pursuant to the President1s legislative powers under martial law. Stan,
this Court discussed the constitutional mandate on the preservation and development of 0ilipino
culture for national 8dentity. 3Article L&, Section ", Paragraph 9 of the Constitution5.
8n the habeas corpus case of Aquino, Jr., v. Enrile, ;" SC-A !#:5, during the pendency of the
case, 9% petitioners were released from custody and one withdrew his petition. The sole
remaining petitioner was facing charges of murder, subversion, and illegal possession of
firearms. The fact that the petition was moot and academic did not prevent this Court in the
e.ercise of its symbolic function from promulgating one of the most voluminous decisions ever
printed in the -eports.
8n this case, the respondents agree with our earlier finding that the prosecution evidence
miserably fails to establish a prima facie case against the petitioner, either as a co*conspirator of
a destabili+ation plan to overthrow the government or as an officer or leader of any subversive
organi+ation. They have taken the initiative of dropping the charges against the petitioner. >e
reiterate the rule, however, that this Court will not validate the filing of an information based on
the kind of evidence against the petitioner found in the records.
>4D-D0-D, the petition is 28SM8SSD2 for having become moot and academic.
S -2D-D2.
Fernando, 3.J., /eean:ee, Ma:a!iar, 3oncepcion, Jr., Melencio;<errera, Plana, E!colin,
.elova and 3ueva!, JJ., concur.
Aquino, =e la Fuente and Ala"pa-, JJ., too: no part.
Se=ara0e $=-n-ons
A3A8 SAN'$S, J., concurring
=el 3a!tillo v!. Ponce Enrile, 6.-. 7o. %9!!", August 9A, !"#<, !:! SC-A <$;, was a petition
for the writ of habeas corpus. 'efore this Court could finally act on the petition, the sub,ect was
released and for that reason the ma,ority of this Court resolved to dismiss the petition for having
become moot and academic. )ustice Teehankee and the undersigned disagreed with the ma,orityC
we e.pressed the view that despite the release of the sub,ect, the petition should have been
resolved on the merits because it posed important legal @uestions.
Bab!t et al. v!. 4ational (ntelligence Board, 9pecial 3o""ittee 4o. >, et al., 6.-. 7o. %9""9,
Sept. 9, !"#<, was a petition for prohibition to restrain the respondents from interrogating the
petitioners, members of the print media, on various aspects of their works, feelings, sentiments,
beliefs, associations and even their private lives. Again the ma,ority of this Court dismissed the
petition because the assailed proceedings had come to an end thereby rendering the petition moot
and academic. 8n dismissing the petition a short and mild note of concern was added. And again
)ustice Teehankee and the undersigned disagreed with the ma,ority. >e e.pressed the view that
this Court should rule s@uarely on the matters raised in the petition rather than dismiss it for
having become moot and academic.
8 am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on
the ground that they have become moot and academic and stopped there. 8 am glad it has
reverted to =e la 3a"ara v!. Enage, Gonzale! v!. Marco! and Aquino v. Enrile which are
mentioned in the ponencia of )ustice 6utierre+.
8 agree with the ponencia of )ustice 6utierre+ that because the subversion charges against the
petitioner had been dropped by the trial court on )anuary !#, !"#;, there is no longer any need to
prohibit the respondents from prosecuting Criminal Case 7o. H*!#%$% insofar as he is
concerned.
8 am not revealing any confidential matter by saying that the initial action of this Court was to
grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from
the ponencia of )ustice 6utierre+. 8 regret that on this matter the Court has been preempted by a
?first strike? which has occurred once too often.
)ustice 6utierre+ states that, ?The Court had already deliberated on this case, and a consensus on
the Court1s ,udgment had been arrived at.? (et me add that the consensus had taken place as early
as ctober 9<, !"#<, and the decision started to circulate for signature on 7ovember 9, !"#<.
Alas, on )anuary !#, !"#;, the decision was still circulating overtaken by events. The decision
could have had a greater impact had it been promulgated prior to the e.ecutive action.
Se=ara0e $=-n-ons
A3A8 SAN'$S, J., concurring
=el 3a!tillo v!. Ponce Enrile, 6.-. 7o. %9!!", August 9A, !"#<, !:! SC-A <$;, was a petition
for the writ of habeas corpus. 'efore this Court could finally act on the petition, the sub,ect was
released and for that reason the ma,ority of this Court resolved to dismiss the petition for having
become moot and academic. )ustice Teehankee and the undersigned disagreed with the ma,orityC
we e.pressed the view that despite the release of the sub,ect, the petition should have been
resolved on the merits because it posed important legal @uestions.
Bab!t et al. v!. 4ational (ntelligence Board, 9pecial 3o""ittee 4o. >, et al., 6.-. 7o. %9""9,
Sept. 9, !"#<, was a petition for prohibition to restrain the respondents from interrogating the
petitioners, members of the print media, on various aspects of their works, feelings, sentiments,
beliefs, associations and even their private lives. Again the ma,ority of this Court dismissed the
petition because the assailed proceedings had come to an end thereby rendering the petition moot
and academic. 8n dismissing the petition a short and mild note of concern was added. And again
)ustice Teehankee and the undersigned disagreed with the ma,ority. >e e.pressed the view that
this Court should rule s@uarely on the matters raised in the petition rather than dismiss it for
having become moot and academic.
8 am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on
the ground that they have become moot and academic and stopped there. 8 am glad it has
reverted to =e la 3a"ara v!. Enage, Gonzale! v!. Marco! and Aquino v. Enrile which are
mentioned in the ponencia of )ustice 6utierre+.
8 agree with the ponencia of )ustice 6utierre+ that because the subversion charges against the
petitioner had been dropped by the trial court on )anuary !#, !"#;, there is no longer any need to
prohibit the respondents from prosecuting Criminal Case 7o. H*!#%$% insofar as he is
concerned.
8 am not revealing any confidential matter by saying that the initial action of this Court was to
grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from
the ponencia of )ustice 6utierre+. 8 regret that on this matter the Court has been preempted by a
?first strike? which has occurred once too often.
)ustice 6utierre+ states that, ?The Court had already deliberated on this case, and a consensus on
the Court1s ,udgment had been arrived at.? (et me add that the consensus had taken place as early
as ctober 9<, !"#<, and the decision started to circulate for signature on 7ovember 9, !"#<.
Alas, on )anuary !#, !"#;, the decision was still circulating overtaken by events. The decision
could have had a greater impact had it been promulgated prior to the e.ecutive action.
Foo0no0es
M 8n the Pilippine! =ail- E?pre!!, dated 2ecember #, !"#!, (ovely was @uoted as having said
in the Enited States that ?8 was not the bomber, 8 was bombed.?
(ovely, who was granted immunity in the Enited States, reportedly would not testify before a
San 0rancisco federal grand ,ury and instead said, ?/our 4onor, 8 came back to tell what
happened in the Philippines. 8 was not the bomber, 8 was bombed.?
The 8nited Pre!! (nternational dispatch from San 0rancisco, E.S., written by Spencer Sherman,
gives a fuller account, thus=
>ith the grand ,ury present in the courtroom (ovely alleged it was Philippine authorities who
were responsible for his in,uries. 8t was they, not him, who placed the bomb in his hotel room, he
said.
8 came back to the States to tell what happened in the Philippines. 8 was not the bomber. 8 was
bombed. There are so many secrets that will come out soon. 8 cannot 3testify5 even if 8 will be
,ailed for lifetime. 8 welcome that.?
N EP press dispatch from
San 0rancisco, 7ovember 9<, !"#!.
The Pilippine 4e'!, a San 0rancisco*based weekly, in its issue of 2ecember 9:, !"#!, contains
the same account, with the following words=
?/our 4onor . . . 8 am not going to participate 8 was almost murdered. 8 cannot continue. My
friends were murdered before 8 came to the Enited States . . . 8 came back to the Enited States to
tell what happened in the Philippines. 8 was not the bomber, 8 was bombed. There are many
secrets that will come out very soon 8 cannot. Dven if 8 will be ,ailed for lifetime. 8 welcome that.